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15
District Court 1 March 2013

R v Melissa MCKEOWN

[2013] NSWDC 22

HomicideTraffic & driving

Citation: R v Melissa McKeown [2013] NSWDC 22
Court: District Court of New South Wales
Date: 1 March 2013
Judge: Judge Haesler SC

Background

The offender drove a motor vehicle while heavily intoxicated on Remembrance Drive near Bargo in June 2011. After consuming between four and five schooners of full-strength beer and two pre-mixed alcoholic drinks over the course of the evening, she disregarded a friend's advice to stay the night and drove home. Her blood alcohol concentration was recorded at a minimum of 0.188 grams per 100 millilitres, a level at which the Crown's expert confirmed her capacity to drive was very substantially impaired.

Her vehicle drifted across the centre line, first sideswiping a northbound car carrying two women who suffered non-permanent injuries, then colliding near head-on with a third vehicle. The driver of that vehicle, Kerry McMahon, was trapped and died shortly after police arrived. The offender herself sustained a fractured sternum, broken ribs, and serious knee injuries.

The offender pleaded guilty to dangerous driving causing death (the aggravated form of the offence, involving intoxication). Two related charges arising from the injuries to the other two women were dealt with on a Form 1 (a procedure by which further offences are taken into account without separate conviction, potentially affecting the overall sentence).

  • What was the appropriate sentence for the aggravated offence of dangerous driving causing death, having regard to all relevant sentencing purposes?
  • How should competing considerations, including the offender's remorse, personal hardship, and the impact on victims, be weighed against one another?
  • What discount applied to the sentence by reason of the early guilty plea?
  • Whether special circumstances existed justifying a longer-than-standard balance of term after the non-parole period.
  • How should Form 1 matters (the injuries to the two surviving victims) affect the overall sentence?

Decision

Judge Haesler held that the offender's moral culpability was very high. She had driven with no necessity to do so, had a safe place to stay, drove on a well-used road despite knowing she was heavily intoxicated, and did so after a friend had actively tried to stop her. The judge accepted that her remorse was genuine and had contributed to a deterioration in her mental health, and found that her early acceptance of responsibility and guilty plea warranted a 25 percent utilitarian reduction in the otherwise appropriate sentence.

The court applied the Court of Criminal Appeal's guideline judgment in Whyte (2002), which confirmed that a total sentence of less than three years would not be appropriate for dangerous driving causing death, and that the aggravated form of the offence (charged where intoxication or other aggravating features are present) required an additional increment reflecting the higher maximum penalty of 14 years and the higher level of moral culpability. The Form 1 matters also operated to increase the sentence, consistent with Markarian, to address personal deterrence, victim harm, and retribution.

In structuring the sentence, the judge found special circumstances existed justifying a longer-than-usual balance of term (the portion served on parole after release). Three factors drove that finding: psychological evidence indicating that the offender's depressive condition would make imprisonment harsher for her than for others; the impact of her incarceration on her young disabled son; and the need for support in reintegrating into the community on release. The judge was careful to note that the sentence had to reflect accountability, denunciation, and recognition of the lasting harm to the McMahon family and the broader community, while also being calibrated to the individual circumstances of the offender.

Orders Made

  • Convicted of dangerous driving causing death (aggravated offence).
  • Sentenced to five years and three months imprisonment, comprising:
  • Non-parole period of three years, commencing 1 March 2013, expiring 29 February 2016.
  • Balance of term of two years and three months, from 1 March 2016 to 31 May 2018.
  • Form 1 matters taken into account in the sentence.
  • Licence disqualification for five years from 1 March 2013.
  • Two back-up charges (s 166 Certificate, sequences three and four) withdrawn and dismissed, having been taken into account on the Form 1.

Key Takeaways

  • Sentencing for dangerous driving causing death requires the court to weigh multiple purposes simultaneously, none of which can be considered in isolation, including denunciation, deterrence, accountability, and the impact on victims.
  • A guilty plea to the aggravated form of dangerous driving causing death attracted a 25 percent utilitarian discount, and the guideline in Whyte confirmed that the aggravated offence requires a higher sentencing increment than the base offence.
  • Genuine remorse and deteriorating mental health are relevant mitigating factors, but the District Court made clear they do not displace the need for a sentence that adequately reflects the gravity of killing an innocent person through heavily intoxicated driving.
  • Special circumstances justifying a modified non-parole to balance-of-term ratio can be established where psychological vulnerability, the impact of custody on a dependent child, and reintegration needs are each present.
  • Form 1 offences, where additional offences are taken into account without separate conviction, operate to increase the overall sentence in accordance with the principles confirmed in Markarian, reflecting harm to additional victims and the purposes of personal deterrence and retribution.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedures) Act 1999 (NSW)

Cases
- Attorney General's Application No. 1 (2002) 56 NSWLR 146 (guideline judgment, dangerous driving causing death)
- Bugmy v The Queen (1990) 169 CLR 525
- Hili v The Queen (2010) 242 CLR 520
- MA v R (2004) 145 A Crim R 434
- Markarian v The Queen (2005) 228 CLR 357
- Musameci v R (1997) unreported, CCANSW 30/10/1997
- Veen v The Queen No. 2 (1988) 164 CLR 465
- Whyte v R (2002) 55 NSWLR 252