IN THE COUNTY COURT OF VICTORIA
AT GEELONG
CRIMINAL DIVISION
SITTING AT MELBOURNE
Revised
Not Restricted
Suitable for Publication
Case No. CR-13-00566
DIRECTOR OF PUBLIC PROSECUTIONS
V
MANDY STEVENSON
--JUDGE:
HER HONOUR JUDGE HOGAN
WHERE HELD:
Geelong
DATE OF HEARING:
2, 3, 4 December 2013
DATE OF SENTENCE:
13 December 2013
CASE MAY BE CITED AS:
DPP v Stevenson
MEDIUM NEUTRAL CITATION:
[2013] VCC
REASONS FOR SENTENCE
---
Subject:
Catchwords:
CRIMINAL LAW
One charge of culpable driving causing death (defendant’s 17 year old son)
and three charges of negligently causing injury (including defendant’s 10 year
old son) – pleas of not guilty – evidence of driver having taken various
prescription drugs and methadone – evidence of drowsiness, erratic driving
and some speed – single car collision with tree – history of anxiety and
depression and Post-Traumatic Stress Disorder and abuse of prescription
medication and “doctor shopping” – Major Depressive Disorder reactive to
death of son – principles 1, 3 and 4 of Verdins’ case held to have no
application – principle 5 of Verdins’ case applied – reduction of non-parole
period due to psychological state and out of mercy for defendant’s surviving
son.
Legislation Cited:
Cases Cited:
Sentencing Act 1991
Sentence:
R v Verdins [2007] VSCA 102; R v Withers [2003] VSCA 176;
R v Gamy (2006) ACrimR 322; Arthurs v R and Plater v R [2013] VSCA 258
Total effective sentence of seven and a half years’ imprisonment - non-parole
period of four and a half years.
---
APPEARANCES:
Counsel
Solicitors
For the DPP
Ms M Mahady
Office of Public Prosecutions
For the Accused
Mr I Polak
Leanne Warren & Associates
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
!Und efined Boo km ar k, I
HER HONOUR:
1
Mandy Stevenson, following a trial, you have been convicted of one charge of
culpable driving causing death, which carries a maximum penalty of 20 years’
imprisonment. You have also been convicted of three charges of negligently
causing serious injury, each of which carries a maximum penalty of 10 years’
imprisonment. It is the sentence of this Court that you are convicted and
ordered to serve a total effective sentence of seven and a half years’
imprisonment with a minimum term of four and a half years’ imprisonment.
2
The circumstances of your offending were that, at approximately 4.45pm on
6 July 2011, you were driving a motor vehicle away from Colac on the ColacMurroon Road towards your home at Barwon Downs. Shortly before a righthand curve, as your vehicle was heading downhill, it left the roadway and
spun around and collided with a tree. The tree was on the left-hand side of
the road as one looks in the direction that you had been travelling. The rear
driver’s side of the vehicle had collided with the tree and the front of the
vehicle ended up facing up the hill in the opposite direction to which you had
been travelling.
Your son, Joshua Stevenson, aged 17 years, was sitting
behind you in the rear of the vehicle and was killed instantly. Seated next to
him was James Ferrari, then aged 14 years. He suffered a head injury by way
of cerebral haemorrhage which twice required surgery, a fractured skull,
pulmonary contusions and a fractured pelvis. Seated next to James Ferrari in
the back seat was Rachel Collett, then aged 15 years.
She suffered
compression fractures of the third, fourth, fifth and sixth thoracic vertebrae.
Seated in the front passenger seat was your 10 year old son,
Mitchell Stevenson. He received head injuries consisting of a right parietooccipital haematoma, multiple petechial bruises on the brain itself, a probable
right fracture of the petrous bone near his ear, and pacification of the mastoid
air cells around his right ear.
VCC:AA/SA
1
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DPP v Stevenson
3
Evidence was given at trial by Tracy McDonald-Sullivan that, earlier in the day
you had picked her up at her home and she had waited in your car while you
obtained a prescription for alprazolam (xanax) from your doctor. You then
had the prescription filled at a chemist and she took some of your tablets in
the car as you drove away from the chemist.
She stated that she had
arranged to illicitly buy oxycontin tablets and you gave her a lift to meet
someone at the showground for this purpose. She stated that you “met a
person there. We both spoke separately and then Mandy left”. She stated
that you “did what (you) had to do” and “got what (you) wanted”, but she had
to wait for her oxycontin.1 When she next saw you at her house that afternoon
you looked drowsy and were sitting with your eyes shut and your head down
towards your chest. She asked you to give her your car keys because she
was concerned that the weather was bad and you were drowsy. However,
you declined to do so, claiming that you could drive well. 2 You left her house
at approximately 2.30pm and then attended Rachel Collett’s home. Evidence
was given by Rachel Collett’s mother, Tania Ciatto, and her sister, Michelle
Collett, that you were seated on their couch nursing Michelle Collett’s baby
when you started nodding off. Tania Ciatto took the baby from you and, when
it became apparent that her daughter Rachel was planning to go in the car
with you to your place, she asked Rachel not to go, but Rachel would not
listen to her.
4
James Ferrari gave evidence that, when you got into the vehicle to leave
Rachel’s place, you were looking in your purse and falling asleep.
He
described how, later, at a set of traffic lights, prior to leaving Colac, you gave
himself, Rachel and Joshua a xanax tablet and had one yourself.
He
described your driving as “shit, terrible”. He said that in Colac, at one stage,
you drove on the centre line. He later described you as being tired and falling
1
2
Transcript (“T”) 301-2, 314
T302-4
VCC:AA/SA
2
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DPP v Stevenson
asleep at the wheel with your head down. He stated that you hit the gravel on
the side of the road just prior to the collision.
5
Rachel Collett, in her evidence, described your driving as “lopsided and
swervy”. She stated that, at one stage, on the straight road going out of
Colac, you were going at 110 to 115 kilometres per hour and she asked you to
slow down, in response to which you slowed down approximately five
kilometres. She stated that you appeared dopey and your eyes were rolling in
the back of your head, your eyes were twitching and you were stuttering.
6
There was some evidence given at your trial that, at periods prior to the
collision, it had been raining. However, witnesses who attended the scene
very soon after the collision stated that the road at the point of the collision
was just damp.
Three civilian witnesses and a police officer, Senior
Constable Daffy, gave evidence that, on the roadway prior to the point of
collision, there were tyre marks visible in the dampness of the road. These
marks came from the incorrect side of the road across the double white centre
lines and back onto the correct side of the road and headed in the direction of
where your vehicle had ended up impacting with the tree.
7
Dr Sungaila, forensic physician, gave evidence that a toxicology certificate
showed that a sample of blood had been taken from you at Colac Hospital at
1905 hours on the evening of the collision. Analysis demonstrated this to
contain .24mg per litre of methadone, .16mg per litre oxycodone (oxycontin),
.02mg per litre of quetiapine (seroquel) and .03mg per litre of alprazolam
(xanax). Dr Sungaila expressed the opinion that, if a person was an habitual
user of each of these drugs, it is quite possible that, on their own, each drug
may not have caused impairment or inability to control a motor vehicle.
However, it was highly likely that these drugs, in combination, would impair a
person’s ability to drive to the extent of not having proper control of a motor
vehicle. She stated that this was because of the additive effect of the drugs,
VCC:AA/SA
3
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DPP v Stevenson
which all act on the same area of the brain and all cause sedation and
drowsiness.
8
Dr Sungaila stated that the level of .16 milligrams per litre of oxycodone in
your blood was reasonably high. Some studies had shown that, when this
drug is used for cancer pain, it can be 10 times less than this level.
Dr Sungaila stated that oxycodone is an opiate in the same family as
methadone. In a therapeutic situation it would be used with methadone only
in extremely rare circumstances because each drug has the same effect of
causing drowsiness, stupor, loss of concentration and driving impairment.
The effect of one of the drugs was doubled by taking the two drugs together.3
9
Dr Sungaila stated that the level of seroquel was quite below the therapeutic
level of .4 milligrams per litre. Its effect depended upon whether it was take
regularly or intermittently. She doubted that at that low level it could cause
much effect, but any effect would be additive to the effects of the other drugs
in your system.4
10
Dr Sungaila stated that, if a person was used to taking xanax, the impairment
effects of that drug may not be immediately noticeable.
However, if that
person were to be given a complex task, like driving, it is quite likely that some
impairment would show up.5
She stated that the level of xanax in your
bloodstream was towards the top of the therapeutic range (which is from .005
to .05 milligrams per litre). Its impairment effect would show up in inability to
control the car adequately, inability to maintain tracking on the road,
drowsiness, loss of concentration and slowing of reflexes. It has “very much a
sedative type of effect, a dampening type of effect on all the brain functions”.
It can cause amnesia, loss of memory and is quite a potent drug, which had
3
4
5
T260-261
T262
T264
VCC:AA/SA
4
SENTENCE
DPP v Stevenson
been recently rescheduled to a higher level by the TGA because of its ill
effects in the community.6
11
Evidence was given by David Ackland, from the Police Mechanical
Investigation Unit, that the vehicle you were driving was unroadworthy
because all tyres had inadequate tread depth.
The informant, Detective
Sergeant Carnie, from the Major Collision Investigation Unit, stated that he
was unable to determine why control of the vehicle had been lost. His opinion
was that the car had rotated anti-clockwise until it impacted with the tree. He
was unable to rule out that insufficient tyre tread was a contributing factor to
the rotation of the vehicle.
12
The verdict of the jury indicates that they were satisfied beyond reasonable
doubt that you were guilty of culpable driving, either on the basis of gross
negligence or the basis that you were under the influence of drugs to such an
extent as to be incapable of having proper control of the motor vehicle. In my
view, it is an inescapable inference that the evidence as to your drug-affected
state, at the very least, would have been relied upon by the jury as part of the
evidence satisfying it of gross negligence, if not the alternative basis of
culpable driving, namely, that you were actually incapable of having proper
control of the motor vehicle. Dr Sungaila’s evidence, as to the highly likely
sedative effect and impairment on ability to control a vehicle of the drugs in
your blood, was corroborated by the evidence of five lay witnesses as to your
drowsiness, prior to and during driving, and the evidence as to your erratic
driving, prior to and shortly after leaving Colac.
13
On 23 July 2011 police had taken a statement from you. This was prior to
police becoming aware of the results of analysis of the blood sample taken
from you on the night of the accident. In that statement you said that you had
been on a methadone program for seven years. You also stated that you
were on anxiety and depression medication, avanza, and had taken one tablet
6
T264
VCC:AA/SA
5
SENTENCE
DPP v Stevenson
of avanza that morning. You stated that the car was a hire car, which you had
had for about 12 weeks. The tyres were pretty good when you got it, but you
knew that one of the tyres was worn. You stated that the spare tyre was
good, but you had no one to help you change it, and no money to pay for it to
be done. You stated that you had driven this road about twice a week for the
last four years.
You could remember that it was “pouring rain” and you
thought you were travelling about 70 kilometres per hour. You stated “I hit a
pot hole that was full of water and then lost control of the car. It must have
aquaplaned”.
14
The evidence of Senior Constable Daffy was that the road was in excellent
condition, having only been sealed a year or two beforehand and that there
were no pot holes in the vicinity of the collision site.7 He stated that there was
no water running on the road and there was no running water in the channel
or gutter on the side of the road.8 A lay witness, Christopher Foster, gave
similar evidence about the lack of water.9 Senior Constable Daffy also stated
that “For a vehicle to end up backwards it’s more than just falling asleep”. He
opined that “If (you) had no steering input, the vehicle would have run off the
road to the left forwards. So, for the vehicle to end up backwards, there’s
been some out of control steering”.10 He stated that he had no trouble taking
the bend at 100 kilometres per hour.11
15
At the trial you gave sworn evidence that you had had methadone at about
10.30 or 10.45 on the morning of the collision.
You stated that you had
bumped into Tracy McDonald-Sullivan at the Colac pharmacy where you got
your dose of methadone, but denied going to her house or leaving your son,
Mitchell, there. You stated that, after you had been to the pharmacy, you
went to the Corangamite Clinic for an appointment at about 11.40 where you
7
8
9
10
11
T50, T84
T48-49
T213
T89
T79
VCC:AA/SA
6
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DPP v Stevenson
obtained a prescription for xanax, which you take for major panic attacks and
anxiety. You claimed that you had taken one xanax after you drove back
home to Barwon Downs from Colac, and then drove back to Colac about
3.30pm to collect Joshua.
You denied that you had ever been inside
Rachel Collett’s house on that day or had ever met her sister, Michelle. You
claimed that you had beeped the horn, and Joshua came out of the house to
the car and asked if James and Rachel could come to stay at your house for
the week. You agreed, and the three of them joined yourself and Mitchell in
the car. You claimed that it had been raining on and off for a few days and
that you had your wipers on at a number of stages during the journey. You
said that you were driving at about 80 kilometres per hour and knew the road
well. You claimed that you hit a divot or a pothole in the road and cannot
really remember what happened after that.
16
You stated in your evidence that, in addition to the methadone, you had taken
80 milligrams of oxycodone the previous night at 9.30 or 10 o’clock because
of pain in your neck. You claimed to have had this prescribed on and off over
five years but, in fact, the oxycodone that you had taken had been prescribed
for your husband, Clayton. You stated that you were not affected by that in
the morning. You stated that you had taken xanax around lunchtime and did
not feel affected by that.
You stated that you had taken seroquel about
9.30 or 10 o’clock the previous evening, but that did not really have any effect
on you, it just helped you not to dream.
17
You denied having purchased oxycodone with Tracy McDonald-Sullivan or
giving her xanax. You also denied having given any of the children in your car
xanax. You said that you were not feeling affected by drugs on that drive and
it was impossible that you were nodding off.
18
Under cross-examination it was put to you that, when you made the statement
to police after the accident, you did not have a very good memory.
VCC:AA/SA
7
You
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DPP v Stevenson
responded that you were in a very distressed state at that time, and had been
prescribed valium.
19
You are presently aged 40 years, having been born on 3 February 1973. You
come before the court with 19 prior court appearances in various Magistrates’
Courts between 1995 and 2011. In 1995 you were convicted of cultivating
and possessing cannabis. However, the bulk of your offending has been for
dishonesty offences and driving offences. The latter offences have largely
been unlicensed driving and driving whilst authorisation has been suspended.
In the past you have been given Community-Based Orders (with which you
often failed to comply) and suspended sentences of imprisonment.
You
breached one suspended sentence, however, no order was made restoring
the sentence. On 21 March 2011 the Colac Magistrates’ Court imposed a
total effective sentence of one month imprisonment for two charges of driving
whilst authorisation was suspended. You appealed to the County Court but
did not appear to prosecute your appeal. Your counsel, Mr Polak, stated that
this was because you had gone to live in Queensland with your parents in the
aftermath of the collision. You were arrested in Queensland and brought to
Victoria to serve that sentence and were released from custody in January
this year.
20
(REDACTED). You then left school at the age of 15 and went to live with your
partner, Clayton Stevenson. You travelled to Queensland with him at the age
of 16 years and had unstable accommodation. He apparently introduced you
to drugs and you became a heroin addict by your late teens. You became
pregnant with your son, Joshua, when you were 20 years old. Your partner,
Clayton, was apparently verbally and physically abusive to you and there have
been periods of separation, some of which occurred because, at times, he
was serving sentences of imprisonment.
21
The criminal history of Clayton Stevenson was tendered as Exhibit “5”. It
comprises some 18 pages. According to Mr Polak, a number of your earlier
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8
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DPP v Stevenson
offences of dishonesty were committed in conjunction with him. He has a
significant history of dishonesty and drug offences. Also, he has a history of
violent offending which includes convictions for armed robbery, assaulting
police, recklessly causing injury, wilfully damaging property, possessing a
dangerous article or controlled weapon and making a threat to kill,
intentionally causing injury, unlawful assault, criminal damage and reckless
conduct endangering life. He has served a number of immediate custodial
sentences between 2003 and 2011.
He was most recently remanded in
custody in late May 2011, approximately seven weeks prior to the collision on
6 July 2011. In part, his incarceration was due to him having assaulted you by
punching you to the face and threatening to kill you.
These, and other
offences resulted in him being sentenced on 8 July 2011 to a total effective
sentence of 10 months’ imprisonment with a non-parole period of four months.
Apparently, he was released in late 2011 and, at some stage, you and he
reconciled and lived in Queensland before you were extradited to Victoria. He
is currently living in the community and has been looking after your younger
son, Mitchell, aged 12 years, since you were remanded in custody following
the jury verdict on 10 September this year.
22
It is apparent, from the clinical notes of Corangamite Clinic at Colac, which
formed part of the depositional material, that you have had a lengthy history of
“doctor shopping” for prescriptions for benzodiazepines. This goes back to at
least 2002, when you were attending a clinic in Dromana.12 From 2005, when
you first started attending the Corangamite Clinic, there are a number of
references in the clinical notes to concerns about you being addicted to
prescription medication.
The most recent was on 27 May 2011, when a
doctor at that clinic made a very specific note that you were a “known doctor
shopper” and have a history of benzodiazepine abuse.13 He then made a
formal notification to the Department of Health that you were a drug
12
13
Depositions (“D”) 397
D352
VCC:AA/SA
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DPP v Stevenson
dependant person, who is doctor shopping and seeking drugs of dependence,
specifically xanax and diazepam.14 This notification took place less than six
weeks before your offending on 6 July 2011.
23
There is evidence in your clinical notes at the Corangamite Clinic, that for
some years you have suffered symptoms of anxiety, poor sleep, panic attacks
and depression. On 23 August 2007 there is a note, “Number of disasters at
present. Mother-in-law has died, Clayton has left, concerns at son’s accident
and feels flat and unwell and teary”. Mr Polak stated that, at about this time,
your younger son, Mitchell, who was then aged seven years, had been
knocked over by a car and was in a wheelchair for some time. You had
apparently witnessed the accident and were complaining of flashbacks and
anti-depressant medication and valium tablets were prescribed for you.15 On
1 April 2009 there is a note, “Run down recently as brother died last week –
very distressed and not eating/sleeping well due to grief”.16 Mr Polak stated
that this related to the suicide of one of your younger brothers, who was an
alcoholic.
Subsequent notes in February and September 2010 record
complaints of ongoing anxiety, sleep disturbance and grief following your
brother’s death for which you were prescribed xanax. However, it is apparent
that the doctors at that clinic had ongoing concerns about your use of xanax.
In 2011 they appear to have ceased giving you any automatic repeat
prescriptions for xanax, whereas previously they had been prescribing it with
two repeat prescriptions.17
In a clinical note, dated 6 March 2011, it is
recorded that you were suffering anxiety attacks every second day. It appears
that, in addition to xanax, it was suggested that you undergo psychological
counselling, however, there is no evidence that you did so. Indeed, back in
2010 following the death of your brother, arrangements had been made for
you to see a counsellor in Geelong, but it appears that you never attended.
14
15
16
17
D406
D357
D355
D353
VCC:AA/SA
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DPP v Stevenson
24
In addition to there being a pattern in the clinical notes of you seeking
benzodiazepines for anxiety and insomnia, there are also a number of
references to you seeking narcotic analgesia for your alleged neck pain
symptoms. On 28 September 2005 it had been noted that you had presented
asking for MS Contin for your chronic neck problem.
However, on
examination you had a full range of movement with no pain or tenderness and
normal sensation and power in the upper limb and normal neurological
examination. It is plain that you were told on that day that there was no
evidence of a medical problem and that no narcotic medication would be
prescribed. There was also a note that you had admitted using your motherin-law’s narcotic medication.18 At a later time, x-rays of your cervical spine
were taken. A report dated 9 February 2007 concludes the examination was
within normal limits.19
Subsequent to this, you complained that you had
suffered a flare-up of neck pain due to pushing your son, Mitchell, in his
wheelchair after his accident. It was noted that on 13 May 2007 that you were
requesting oxycontin and the doctor advised that narcotics were not a good
choice for chronic non-malignant pain.20
25
Mr Polak asked the court to accept that you genuinely believed that you had
pain in your neck and had been prescribed oxycontin in the past for it and had
taken it on the night prior to the accident for this purpose, even though it was
not prescribed for you but, rather, for your husband, Clayton Stevenson. I do
not accept this submission. Your clinical record at Corangamite Clinic makes
it clear that you had been warned that there was no indication for you to take
narcotic analgesia for your neck. The picture that emerges is that you had an
established lifestyle of abusing prescription drugs. Moreover, I am satisfied
beyond reasonable doubt that on the day of the collision you did illicitly
purchase oxycodone and take it, and were subsequently drowsy and shutting
your eyes on the couch at the home of Tracy McDonald-Sullivan as described
18
19
20
D360
D390
D357
VCC:AA/SA
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DPP v Stevenson
by her in her sworn evidence.21 As a long term methadone user, you should
have been very much aware that this was not a drug to take in combination
with methadone. I am also satisfied beyond reasonable doubt that you took
two xanax on the afternoon prior to the collision. You admitted in your sworn
evidence on your trial that, after you had the prescription filled at the Colac
Pharmacy, you took one xanax around lunchtime.22 I am satisfied that you
took another xanax, as described by Rachel Collett23 and James Ferrari,24
when you were driving your vehicle at or near the traffic lights shortly before
you left Colac. I make no finding on their evidence that you also gave them
and Joshua a xanax tablet at this time, as you have not been charged with
any offence relating to that.
26
During the plea in mitigation on your behalf, which proceeded in a fragmented
and dilatory fashion over three days, three reports were tendered from a
forensic psychologist, Dr Aaron Cunningham.
The reports are dated
21 November 2013, 2 December 2013 and 3 December 2013.25
27
In his first report, dated 21 November 2013, Dr Cunningham recorded a
history that you had experienced night sweats, anxiety, panic attacks and
depression prior to the collision on 6 July 2011, but had never engaged in
psychological treatment.
He considered that you were suffering a Post-
Traumatic Stress Disorder REDACTED
28
In his second report, dated 2 December 2013, Dr Cunningham stated that the
symptoms of your Post-Traumatic Stress Disorder include both depression
and anxiety. The depressive symptoms include persistent and exaggerated
negative belief and expectations about yourself, persistent negative emotional
states, loss of interest in activities and persistent inability to experience
positive emotions. The anxiety symptoms include irritable and reckless or
21
22
23
24
25
T302-304
T351
T108
T171
Exhibit “2”
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DPP v Stevenson
self-destructive behaviour, hypervigilance and sleep disturbance. He stated
that your medical files (from Corangamite Clinic) indicate that you were being
treated for both depression and anxiety consistent with a diagnosis of PostTraumatic Stress Disorder, which had first been made by a general
practitioner two years ago. I here interpolate that there is no evidence before
the court that you had ever been diagnosed with this condition prior to
Dr Cunningham making his diagnosis recently.
Mr Polak said he was
instructed that a Dr Tenise had made the diagnosis when you returned to live
in Queensland, but he was unable to say whether it was based on the
aftermath of the collision REDACTED. However, your solicitor, Ms Kennedy,
stated that she was unaware of any previous diagnosis of Post-Traumatic
Stress Disorder and had understood that, although you had seen a counsellor
with the Salvation Army twice in Queensland, she did not take details of any
doctor seen by you and, as far as she was aware, the only medication you
received in Queensland was methadone.
29
Dr Cunningham expressed the view that your Post-Traumatic Stress Disorder
is the overarching condition resulting in your symptoms of depression and
anxiety and that the burden of these symptoms gave you an impaired ability to
cope with further life stressors. He noted that you had been assaulted by
Clayton Stevenson some weeks prior to the motor vehicle collision and
thought it likely that this abuse would have aggravated your Post-Traumatic
Stress Disorder symptoms and led to a further reliance on your prescription
drug use.
In his first report, he had expressed the opinion that your
relationship with Clayton, and associated instability, had perpetuated your
Post-Traumatic Stress Disorder.
30
In his first report, Dr Cunningham also opined that you are suffering from a
Major Depressive Disorder precipitated by the death of your son, Joshua.
This is manifested in depressed mood, loss of interest in activities and
pleasure, feelings of worthlessness and guilt, fatigue, difficulty concentrating
VCC:AA/SA
13
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DPP v Stevenson
and recurrent thoughts of death. He considered that these symptoms have
increased whilst you have been in custody. He stated that, if left untreated,
your symptoms would result in a term of imprisonment weighing more heavily
upon you compared to an individual without Post-Traumatic Stress Disorder
and Major Depressive Disorder. This is because of the exposure to stress in
a prison environment. He considered that you were not receiving significant
mental health support in prison and were disconnected from your supports in
the community.
He stated that you require long term psychological
engagement and, should this occur, then your use of prescription medication
most likely would reduce.
31
In his third report, dated 3 December 2013, Dr Cunningham stated the
following:
“In my opinion, Mrs Stevenson’s combined use of medication obscures
the ability to draw a causal link between her offence behaviour and her
Post-Traumatic Stress Disorder symptoms.
In my opinion,
Ms Stevenson’s combined use of medication was an attempt to cope
with her Post-Traumatic Stress Disorder symptoms.”
32
Mr Polak and the prosecutor, Ms Mahady each commented that the two
sentences which I have just quoted did not sit well together. Mr Polak said
that he did not propose to call Dr Cunningham to clarify what he meant by
them. Nonetheless, Mr Polak stated that he relied upon Dr Cunningham’s
reports.
33
It was conceded by the prosecution that your psychological condition at the
date of sentencing could mean that a term of imprisonment would weigh more
heavily upon you than it would on a person in normal health, in accordance
with principle 5 enunciated in R v Verdins.26 However, Mr Polak relied upon
the records of the Corangamite Clinic, in combination with Dr Cunningham’s
reports, in support of a submission that your pre-collision psychological
condition of Post-Traumatic Stress Disorder, with symptoms of anxiety and
depression, should reduce the moral culpability of your offending and
26
[2007] VSCA 102
VCC:AA/SA
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DPP v Stevenson
moderate the emphasis to be placed on general and specific deterrence in
accordance with principles 1, 3 and 4, respectively, of Verdins’ case.
34
Mr Polak submitted that there was “a clear link” between your anxiety,
depression and sleep problems and your “difficulty with prescription
medication” and this offending. He urged that this was particularly so because
of the increased stress caused to you by your husband assaulting you and
being incarcerated some weeks before the collision. He argued that the link is
“a matter of logic” because you accessed prescription medication in order to
cope with your Post-Traumatic Stress Disorder, as well as to deal with pain in
your neck, which you perceived to be real. Mr Polak told the court that, in a
telephone conference Dr Cunningham had indicated to him that he was not
prepared to support the link, but he relied upon, Dr Cunningham’s statement
in his third report that your combined use of medication was an attempt to
cope with your Post-Traumatic Stress Disorder symptoms.
35
Ms Mahady, on behalf of the prosecution, submitted that, if the court were to
find a realistic connection between your Post-Traumatic Stress Disorder and
the offending, then this should result in only a very slight reduction in your
moral culpability and very slight reduction in the emphasis to be given to
general and specific deterrence. She submitted that your culpability is at the
higher end of the scale because you had been warned by Tracy McDonaldSullivan not to drive, you had taken a further xanax tablet while driving and
you were warned about your speed of driving by Rachel Collett.
36
I have found this to be a difficult issue, and I must say that I received little
assistance from the submissions made by your counsel. I accept that you
have had a difficult life. REDACTED
37
I consider that your unhappy relationship with Clayton Stevenson, during
which he has been unfaithful to you, has been quite often an absent husband
and father, and has treated you with disrespect, including assaulting you, on,
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at least one, occasion some six or seven weeks prior to the collision, has
probably had an adverse effect upon your self-esteem and psychological wellbeing. However, it appears to me that you are not a person who ever matured
to be able to accept advice as to how you should deal with your issues, but,
rather, developed a pattern of a “quick fix” by relying upon and abusing
prescription drugs.
38
Leaving methadone to one side, the drugs which were in your blood at the
time of the collision were not merely for the treatment of anxiety and
depression, but included a powerful narcotic analgesic, oxycodone, which had
no role whatsoever to play in the treatment of your psychological condition.
Indeed, you had been told by doctors at the Corangamite Clinic that such
narcotics had no role to play even in your alleged symptoms of neck pain. It is
also pertinent to note that, following the assault upon you by your husband,
your dosage of the anti-depressant, avanza, was increased on 30 May 2011
from 30mg at night to 45mg at night.27 You had told police in your statement
that you had taken a tablet of avanza on the morning of the collision.
However, Dr Sungaila’s evidence was that avanza did not show up on the
toxicology report. She stated that she would have expected it to show up in
your blood because it has a reasonably long half-life of several hours.28 This
suggests that you were not compliant with your anti-depressant medication.
39
You have a history of being advised to attend counselling for your
psychological issues, but you have never done so. Even subsequent to this
disastrous collision, Dr Churchman, who took over your treatment on
6 February 2013, developed a mental health care plan for you to attend
Ms Lacis, psychologist. You made one appointment but did not attend. 29 I
note that, in the mental health care plan, Dr Churchman mentioned that you
27
28
29
D351
T277
See Dr Churchman’s report dated 30 September 2013, Exhibit “3”.
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suffer a bereavement disorder and a mental disorder by way of opiate
dependence, but made no mention of a Post-Traumatic Stress Disorder.
40
After your release from serving the one month sentence for driving whilst your
authorisation was suspended, your bail on the offences for which I must
sentence you was supervised by the Court Integrated Services Program. A
report from Emma Robertson, case manager, dated 26 March 201330 refers to
traumatic childhood events (albeit does not mention an actual Post-Traumatic
Stress Disorder), but does refer to your ongoing difficulty managing your grief
after Joshua’s death.
Over the 10 weeks of supervision, notwithstanding
strong encouragement from Ms Robertson to engage with a psychologist, you
failed to do so. Moreover, you were entitled to continue to access all forms of
support offered to you through the CISP program, but elected not to do so.
41
After careful consideration, I cannot be satisfied that there is a realistic
connection between your symptoms of anxiety, insomnia, panic attacks and
depression (whether or not they satisfy the criteria for Post-Traumatic Stress
Disorder) at the time of offending and the offending conduct itself. Thus, I do
not find a basis for the application of principles 1, 3 and 4 of Verdins’ case.
For a start, there is the difficulty that you still do not acknowledge that you
were drug-affected when you had the collision. You pleaded not guilty to the
offences and gave evidence at your trial that you were not feeling affected by
drugs and not nodding off prior to the collision. As part of the plea, Mr Polak
effectively sought to re-ventilate the issues which had been raised at trial. He
stated that you instructed him that you believed that the lay witnesses had
entered into some form of conspiracy in describing your drowsiness and poor
driving.
42
It is not credible that Tracy McDonald-Sullivan, her partner, Peter Bourke,
Tania Ciatto and her daughters, Michelle Collett and Rachel Collett, and
James Ferrari have all colluded to tell lies about you. This is particularly so
30
Exhibit “4”
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given that their evidence includes such everyday details as you dropping your
son, Mitchell, and his friend, Vincent McDonald-Sullivan, back to Tracy
McDonald-Sullivan’s home and you purchasing a gift for Michelle Collett’s new
baby. Yet, you would urge the court to accept that you just happened to
“bump into” Tracy McDonald-Sullivan when you were collecting your
methadone and, generally, had very little to do with her. You would also have
the court believe that you have never even met Michelle Collett. In my view,
the only reasonable inferences are that, either your mind was so affected by
the multiple drugs you had taken on 6 July 2011 that your memory is severely
affected, or you are not telling the truth. Dr Sungaila gave evidence that the
drug, Xanax, can cause amnesia and loss of memory. 31 Certainly, the
statement you made to police on 23 July 2011 is not believable in many
respects. Unlike your sworn evidence, you claimed in that statement that
Mitchell had gone to school on 6 July 2011. Unlike your sworn evidence, you
mentioned having taken one tablet of avanza that morning and your dose of
methadone, but made no mention of having taken oxycontin, xanax or
seroquel. Your statement describes the weather as “pouring rain” and how
you hit a “pot hole that was full of water” and then lost control of the car, which
“must have aquaplaned”. It is clear from the evidence of Senior Constable
Daffy that there was no pothole and, from his evidence and that of three lay
witnesses,32 that there was no water on the road when the collision occurred.
Your recollection cannot be relied upon.
43
Leaving aside the moral contradiction of you seeking to rely upon “selfmedicating” your symptoms of Post-Traumatic Stress Disorder, while not
conceding that your driving capacity was impaired by the effects of such “selfmedication”, you have a long history of abuse of prescription medication and a
disinclination to do anything about it by engaging in alternative therapies, such
as counselling.
31
32
Although I accept that, having been assaulted by your
T26
Peter Doolan, Thomas Doolan and Christopher Foster
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husband some six weeks prior to your offending conduct, would have
heightened your stress levels, the medication which you took on 6 July 2011
was far in excess of what was prescribed to deal with such stress. Also, as
previously stated, the oxycodone, being a narcotic analgesic, had no role
whatsoever to play. My overwhelming impression is that you had developed a
lifestyle where you enjoyed the euphoric or sedative effect of prescription
medication. Taking it regularly and illicitly had become a bad habit over a very
long period of time and was not necessarily connected to your symptoms of
anxiety, depression or sleeplessness, even though those were the complaints
you made to doctors in order to obtain prescriptions. You repeatedly had
been warned about the dangers of your addiction, but did nothing about it.
44
Finally, it would appear to make a nonsense of the law if the ingestion of the
very substances which I am satisfied the jury found to be at least partly (if not
totally) responsible for your offending conduct, should also be a basis for
mitigating your moral culpability and the emphasis to be placed upon general
and specific deterrence. The higher courts have made it plain that taking
alcohol or drugs which cause a person to make a bad decision to drive when
he or she, otherwise, would not have done so, will only constitute a mitigating
factor in the rarest of circumstances.33 For the principles in Verdins case to
apply, the relevant mental condition must have contributed directly to the
commission of the offence.
The fact that a person’s drug-taking is a
consequence of his or her mental condition does not establish that link.34
45
Mrs Stevenson, there is grave community concern about the number of
deaths and serious injuries which occur because of irresponsible driving on
our roads.
This concern has been reflected in the maximum penalty for
culpable driving causing death being increased from 10 to 15 years’
imprisonment in 1992 and from 15 to 20 years’ imprisonment in 1997. The
maximum penalty of 10 years’ imprisonment for negligently causing serious
33
34
Arthars v R and Plater v R [2013] VSCA 258 at [42]
R v Shafik-Eid [2009] VSCA 217 at [27]
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injury is also an indicator of how seriously that offence is regarded by the
community. As was stated by Vincent JA in R v Withers35, “The offence of
culpable driving is regarded effectively as involuntary manslaughter and the
penalty is the same for that of manslaughter”. His Honour stated that courts
have repeatedly emphasised the importance of general deterrence in
sentencing for culpable driving. This is in the hope that those who may be
minded to act in the culpably irresponsible way that you have done, resulting
in the death of your own son, will know that such behaviour will not be
tolerated and will be likely to result in a substantial term of imprisonment.
Similarly, in cases of negligently causing serious injury, it has been said on
numerous occasions that denunciation and general deterrence must be the
predominant sentencing principles.36
46
The holding of a driver’s licence is a privilege and it is only given to adults.
This is because operating a vehicle other than in a responsible and adult
fashion can so easily have disastrous results. I regard your driving, on 6 July
2011, as a serious example of the offences of culpable driving causing death
and negligently causing serious injury. You had been warned by your doctors
about your dependence upon benzodiazepines and also told that it was not
appropriate to take narcotic analgesics for your neck pain. Also, I am satisfied
beyond reasonable doubt that at approximately 2.30pm or 3pm on 6 July
2011, Tracy McDonald-Sullivan did ask you to hand over your car keys
because she was concerned about you driving, because you were drowsy and
the weather was bad. You knew the road well, but the evidence of marks on
the roadway shows that your vehicle had been on the incorrect side of the
road approximately 30 metres prior to the point of collision.37
In these
circumstances, your conduct has a high moral culpability. It involved a gross,
irresponsible breach of trust towards your own two children and their two
young friends, who were passengers in your vehicle. Thus, in sentencing you
35
36
37
[2003] VSCA 176
R v Gamy (2006) ACrimR 322
Evidence of Senior Constable Daffy, T47
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this court must denounce your conduct and place emphasis upon general
deterrence, as well as imposing just punishment. The emphasis upon specific
deterrence should not be as great, as I take into account that you will not be in
a position to drive a car again for quite some years and, also, your continuing
grief and guilt is likely to act as a personal deterrent.
Your conduct has
caused the tragic death of your son, Joshua Stevenson. I know that you will
live with your guilt and this loss for the rest of your life, as you explained in a
letter to the court.38 It has also deprived your son, Mitchell, of his brother and
your husband of his firstborn son.
47
Mitchell, himself, suffered serious injuries, as I have previously mentioned.
He was treated at Geelong Hospital for neck and head injuries, and his
treatment records show that he was crying with pain and required the
administration of intravenous morphine.
The impact of the collision was
sufficiently forceful to fracture Mitchell’s skull and cause bruising to his brain.
As there is no Victim Impact Statement, his current health status is unknown.
48
I have already referred to the multiple wedge fractures to the thoracic spine
sustained by Rachel Collett. These necessitated her wearing a back brace for
quite a number of weeks and attending for rehabilitation thereafter.
In a
Victim Impact Statement, made by her on 29 November 201339, she speaks of
ongoing pain in her back impacting upon her ability to pursue her dancing and
gymnastics’ interests and also a potential career in dog grooming. She has
psychological symptoms which include nightmares about the collision and
what happened to Joshua. She has difficulty sleeping and suffers anxiety and
anger which impact adversely upon her relations with others.
49
Rachel Collett’s mother, Tania Ciatto, in a Victim Impact Statement made on
28 November 2013, states that she has suffered depression and sleep
disturbance since the collision. She states that she is fearful for her daughter
38
39
Exhibit “1”
Exhibit “A”
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every time she goes out and that her daughter has shown a great deal of
depression and anger and behavioural disturbance since the collision which,
in turn, has made her very stressed.
50
Previously, I referred to the serious injuries sustained by James Ferrari. He
underwent significant trauma, as he was trapped next to Joshua in the back
seat for approximately 30 minutes before being cut out of the vehicle. He
needed to be intubated at the scene of the collision and was found to have
sustained a large, acute, right frontal intracerebral haemorrhage with
associated intraventricular haemorrhage.
He also sustained a complex
comminuted right frontal skull fracture extending into the skull base and
through the right orbital roof. He underwent surgery by way of a right frontal
craniotomy. He was returned from surgery to the Intensive Care Unit at the
Royal Children’s Hospital and required ongoing significant management for
several days necessitating him being sedated.
He had also suffered
pulmonary contusions, adrenal haemorrhage and perinephric fluid and
fractures of the pelvis. He required extensive rehabilitation and the report
from the Royal Children’s Hospital notes that he had behavioural issues
necessitating him being retained in hospital on 28 July 2011 under the Mental
Health Act. He underwent a further surgical procedure on 4 August 2011 and,
ultimately, was discharged on 10 August 2011. A Victim Impact Statement
made by him, on 29 November 201140 notes significant psychological issues
concerning safety and mood control and strained relationships with others.
He missed a significant amount of school and expresses his grief for Joshua,
whom he described as his best friend. He suffers ongoing pain and feels that
he has few friends and cannot enjoy such things as fishing or pursuing his
interest in boxing.
51
Mrs Stevenson, it is a truly unenviable task for a judge to have to sentence a
mother for causing the death of her son and seriously injuring another son and
40
Exhibit “B”
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two other children.
The most concerning thing is your inability to accept
responsibility for what you have done. I know that you are suffering from a
Major Depressive Disorder as a consequence of Joshua’s death. Perhaps
this, in itself, plays a role in you not being able to accept that you are legally
and morally responsible for his death, as well as the injuries to Mitchell and
Rachel Collett and James Ferrari. You pleaded not guilty to the charges, and
Rachel Collett and James Ferrari were put through the trauma of having to
relive the circumstances of this ghastly collision. As already mentioned, even
during the plea in mitigation, Mr Polak stated that your instructions to him
were that you believe the lay witnesses had conspired to give evidence
against you.
52
Even though in the letter to the court from yourself, Exhibit “1”, you state that
you feel pain and guilt and deep loss for the death of your son and, also, for
James and Rachel, I am unable to find that you have true remorse and
contrition for what you have done, as distinct from experiencing sorrow and
guilt. In your letter, your beg the court to send you home. You state that you
do not believe that you should be in prison because you need to be with your
son, Mitchell, as he has lost his brother and now he is without you. You say
that you need to go home so that you can all undertake family counselling to
help overcome your enormous loss. Unhappily, this letter spells out to me
that you really have very little insight into the magnitude of your offending if
you think it would be appropriate for a judge to simply send you home right
here and now.
53
Although I know that you did not set out to do so, your woeful conduct has
caused the loss of a young life and serious injuries to three young people.
Those injuries are likely to be enduring in a psychological sense and, possibly,
also by way of a physical impairment.
There is no doubt that the only
appropriate sentence is a substantial term of imprisonment with a significant
immediate custodial component.
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54
The higher courts have made it plain that in circumstances where there are
multiple victims, that some cumulation of sentence must be given to reflect the
gravity of the overall offending and so that those additional victims are not
treated as mere statistics. Having said that, obviously it is important to apply
the principle of totality.
55
In sentencing you, I accept that your mind is occupied with the loss of your
son, Joshua, and the guilt and pain that you feel, as well as the grave concern
that you have for Mitchell who, himself, must be suffering great psychological
pain. He is only 12 years old and is without motherly care. He is reliant upon
being looked after by his father who has a serious criminal history for violence,
dishonesty and drug offences. In your letter you speak of the tenderness that
you have always had for your sons and the care which you have lovingly
given them in so many aspects of their life. The grief that you feel is, no
doubt, worse than any sentence that a court could ever impose. As part of the
intuitive synthesis in arriving at the sentence to be imposed, I do take into
account your deep grief and resultant Major Depressive Disorder, as well as
your pre-collision symptoms of anxiety and depression, which Dr Cunningham
describes as part of a Post-Traumatic Stress Disorder. I am conscious that
your psychological fragility will make serving a term of imprisonment very hard
for you, and it must be factored into the level of punishment to be imposed.
However, it is plain that the terrible punishment that you have brought upon
yourself by causing Joshua’s death cannot be treated as a substitute for the
punishment which the law requires.
56
I accept that, from the age of 15, you have had very little moral or practical
guidance, and this has resulted in an apparent immaturity that one would not
expect in a person of 40 years of age. You have had a hard life and it is pitiful
to see you so isolated that not one person came to the plea hearing to sit in
court to support you or speak on your behalf. You are a tragic figure and I do
fear, as Dr Cunningham has said, that your psychological state, which has
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deteriorated already in the time that you have been remanded in custody, may
suffer further. Apparently, to date, you have had no visitors because your
husband, given his criminal record, needs a special security clearance, and
Mitchell needs photographic identification and an adult to accompany him to a
prison. Hopefully, these matters will be addressed in time so that you can
receive visits.
57
Unhappily, my hands are tied in terms of the stern sentence that I must
impose to remind all drivers of the dangers to their passengers and other road
users created by irresponsible driving. In determining the non-parole period, I
have given careful thought to the fact that you were a psychologically
vulnerable person prior to this accident. Layered upon this vulnerability is now
a Major Depressive Disorder which has developed in response to Joshua’s
death. As already stated, I accept that a term of imprisonment is likely to
weigh more heavily upon you than someone without the stress of your
psychological state, and I accept that the prison environment is likely to
aggravate that psychological state.
58
In his first report, Dr Cunningham describes you as suffering, “Significant
mental
health
conditions
that
require
long-term
engagement
with
psychological intervention”. He reports that your symptoms have escalated in
prison and that you are not receiving significant mental health support.
Unhappily, such a large number of people in custody have mental health
issues, that prison resources are heavily overloaded. Even though you could
have engaged with counsellors in the two years that have elapsed since the
collision, but did not do so, I accept that you will not get the counselling that is
required now that you are in custody.
I have concluded that this factor,
together with some mercy for the sake of your son, Mitchell, warrants the
imposition of a somewhat shorter non-parole period than I would have
imposed, even though it is difficult to assess your prospects of rehabilitation.
Hopefully, a significant period in custody where you will not have the
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opportunity to abuse prescription medication will prepare you for engagement
with mental health services upon your release. You seem such an immature
person with so little community support, that you will need the rigorous
supervision of a reasonably long parole period upon your release if you are to
be rehabilitated back into the community. Dr Cunningham has opined that
treatment of your psychological conditions would likely result in a reduction of
your prescription medication and, ultimately, reduce your risk of re-offending.
59
On Charge 1, culpable driving causing death, you are convicted and
sentenced to be imprisoned for a period of six years.
60
On Charge 2, negligently causing serious injury, you are convicted and
sentenced to be imprisoned for a period of three years.
61
On Charge 3, negligently causing serious injury, you are convicted and
sentenced to be imprisoned for a period of three years.
62
On Charge 4, negligently causing serious injury, you are convicted and
sentenced to be imprisoned for a period of three years.
63
The sentence of six years imposed on Charge 1 is the base sentence. I direct
that six months of each of the sentences imposed on Charges 2, 3 and 4 be
served cumulatively upon the sentence imposed on Charge 1 and upon each
other.
64
The total effective sentence is thus seven and a half years’ imprisonment.
65
I direct that you serve a period of four and a half years’ imprisonment before
becoming eligible for parole.
66
I declare a period of 104 days pre-sentence detention (exclusive of today) to
be time reckoned as already served under the sentence imposed this day.
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67
Pursuant to s89(2)(b) of the Sentencing Act 1991, I order that all licences to
drive a motor vehicle are cancelled and you are disqualified from obtaining a
licence for a period of five years operative from 10 September 2013.
---
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