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District Court 8 November 2019

R v Cook

[2019] NSWDC 667

DrugsTraffic & driving
CRIMINAL SENTENCING SUBJECTIVE MATTERS MENTAL HEALTH OF OFFENDER.

Citation: R v Cook [2019] NSWDC 667
Court: District Court of New South Wales
Date: 8 November 2019
Judge: Abadee DCJ

Background

In the early hours of 14 October 2018, a 17-year-old P1 provisional driver drove three passengers through a residential area of Blacktown after consuming a combination of Xanax (alprazolam) and MDMA, and possibly cannabis. He lost control of the vehicle, mounted a kerb, travelled across a footpath, and struck a telegraph pole. One rear passenger, aged 17, died at the scene. The two other passengers, aged 17 and 15, suffered serious injuries.

The offender pleaded guilty in the Local Court to one count of aggravated dangerous driving occasioning death (maximum: 14 years) and two counts of aggravated dangerous driving occasioning grievous bodily harm (maximum: 11 years each). The circumstance of aggravation in each count was that the offender's capacity to drive was very substantially impaired by a combination of drugs.

A central dispute at sentencing was whether the offender's diagnosed social anxiety disorder had contributed to his drug use and, consequently, to the offending itself. The offender had been assessed by a forensic psychiatrist who diagnosed social anxiety disorder, with a finding that the offender's dependence on Xanax was linked to that condition. The Crown contested the extent to which this reduced the offender's objective seriousness and moral culpability.

  • What was the appropriate level of objective seriousness and moral culpability for three aggravated dangerous driving offences where impairment arose from a combination of drugs?
  • Whether and to what extent a diagnosed social anxiety disorder, said to underlie the offender's Xanax dependence, reduced the offender's moral culpability under the principles in R v Whyte and related authorities.
  • How the guideline judgment in R v Whyte (2002) 55 NSWLR 252 applies to the aggravated offences under s 52A(2) and s 52A(4) of the Crimes Act 1900.
  • What discount applied for the early guilty plea, and what weight should be given to the offender's subjective circumstances, including youth and prospects of rehabilitation.
  • What period of driver licence disqualification was appropriate given the length of the custodial sentence and rehabilitation considerations.

Decision

Abadee DCJ applied the R v Whyte guideline to the sentencing exercise, noting that while it was developed for the standard dangerous driving offences, it also guides sentencing for the aggravated variants. The court found the offending was serious: the offender was a provisional driver subject to night-time passenger restrictions, he was driving above the speed limit in wet and dark conditions, and his impairment arose from a voluntary combination of drugs he had taken with his passengers shortly before driving.

On the mental health question, the court accepted the forensic psychiatrist's diagnosis of social anxiety disorder and its connection to the offender's Xanax dependence. However, consistent with established authority on the relationship between mental illness and moral culpability in sentencing (particularly R v Engert and SBF v R), this was treated as a mitigating factor rather than a substantial reduction in objective seriousness. The court distinguished between dependence on one substance (Xanax, linked to the anxiety disorder) and the voluntary consumption of MDMA, for which no comparable explanation was offered.

The offender received the agreed 25% discount for his early guilty pleas. His youth, lack of prior criminal history, remorse, and the psychiatric evidence of vulnerability in custody were all accepted as mitigating factors. The court directed that Corrective Services be informed of the social anxiety disorder, the treating psychiatrist's recommendations, and the assessment that the offender would likely be a more vulnerable prisoner.

On licence disqualification, the court reduced the automatic three-year disqualification period to 18 months for each offence (treated concurrently), citing the length of the custodial sentence and the importance of rehabilitation and reintegration, consistent with the Court of Criminal Appeal's approach in Reddy v R [2018] NSWCCA 212.

Orders Made

  • Convicted of one count of aggravated dangerous driving occasioning death and two counts of aggravated dangerous driving occasioning grievous bodily harm.
  • Aggregate sentence of 7 years imprisonment, commencing 8 November 2019 and expiring 7 November 2026.
  • Non-parole period of 3 years and 10 months, with eligibility for parole on 7 September 2023.
  • Direction to Corrective Services regarding the offender's social anxiety disorder, treatment recommendations, and vulnerability.
  • Convicted of the s 166 passenger restriction offence; s 10A order made (conviction without further penalty).
  • Driver licence disqualification of 18 months from date of release on parole, applying concurrently across all counts.

Key Takeaways

  • The R v Whyte guideline judgment, while primarily directed at standard dangerous driving offences under s 52A, also informs sentencing for the aggravated variants under s 52A(2) and s 52A(4).
  • A diagnosed mental health condition linked to drug dependence may reduce an offender's moral culpability as a mitigating factor, but does not automatically reduce the objective seriousness of the offending, particularly where other voluntary drug use (here, MDMA) contributed to the impairment.
  • Under the established R v Engert line of authority, courts examine the causal connection between a mental disorder and the offending conduct when assessing how much weight the condition should carry in mitigation.
  • Automatic licence disqualification periods may be reduced below the statutory default where the length of a custodial sentence and rehabilitation prospects together justify it, consistent with Reddy v R [2018] NSWCCA 212.
  • Courts retain the power to direct Corrective Services to be informed of an offender's mental health diagnosis and specific vulnerabilities, providing a practical mechanism to support appropriate management in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A(2), 52A(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Road Transport legislation (s 166 passenger restriction offence)

Cases
- R v Whyte (2002) 55 NSWLR 252
- R v Engert (1995) 84 A Crim R
- SBF v R (2009) 198 A Crim R 219
- Reddy v R [2018] NSWCCA 212
- Kerr v R [2016] NSWCCA 218
- DPP v De La Rosa [2010] NSWCCA 194
- R v Jurisic (1998) 45 NSWLR 209
- R v Henry (1999) 46 NSWLR 346
- R v Errington (2005) 157 A Crim R 553; [1999] NSWCCA 18
- R v Elkassir [2013] NSWCCA 181
- R v Smith, Jarad [2016] NSWCCA 75
- R v Shashati [2018] NSWCCA 167
- R v Manok [2017] NSWCA 232
- R v Veatufunga [2007] NSWCCA 54
- R v Dutton [2015] NSWCCA 248
- R v Khatter [2000] NSWCCA 32
- R v McKeown [2013] NSWDC 22
- Whybrow v R [2008] NSWCCA 270
- DPP v Neethling [2009] VSCA 116