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- Unreported Judgment
R v Crosby QDC 30
DISTRICT COURT OF QUEENSLAND
R v Crosby  QDC 30
CROSBY, Jayde Blair
23 January 2019 (delivered ex tempore)
23 January 2019
CRIMINAL LAW – PARTICULAR OFFENCES - SENTENCE – driving offences - dangerous operation of a vehicle causing death – not momentary inattention – very short period of distraction
C M Cook for the Director of Public Prosecutions
E Whitton for the defendant
Office of the Director of Public Prosecutions
Legal Aid Queensland
- HIS HONOUR: You pleaded guilty to a single count of dangerous operation of a vehicle causing death. Whether or not you appreciate it, every single day when any of us get in a motor vehicle, turn it on and start driving, we are participating in a massive overlapping, interlocking social contract. It has very simple terms. You want to get from the start of your journey to the end of your journey safe and sound, and every other person travelling on the road at the same time, that crosses your path or crosses by your path, has the same hope, wish, and expectation.
- Just before Christmas 2018, I drove from the Home Base and came round that corner because I live just over the river. So I have travelled the exact same path within a couple of months – just over a month ago – that the car driven by Ms Cotsall-Smith was travelling when your car crashed into it. They and you, I am sure, had the same expectation that each of you will travel safely to the destination that each of you were heading to.
- Now, in your case, you had had some disturbing news from your doctor, you had a cigarette – quite frankly, I think they should be banned in cars but it is not my decision – and you were distracted by the radio. So three things that were operating on you that caused your driving to fall so short of what is acceptable that it breached the social contract. Your car went across double white lines to the wrong side of the road. It collided with the car being driven by Ms Cotsall-Smith, the driver, and, of course, three days later, her mum, Joan Cotsall, died.
- She was a lady of 98. She was in excellent health for her age. The family hoped and wished that she would live to 100, as did she, of course, and those hopes and family dreams were dashed. She missed the birth of another child, a great granddaughter, great grandchild, and all of that flows from your failure – that is what it is: it is a failure – to make sure that you drove with enough care that no one else would be injured or killed by your driving.
- One of the principles that the prosecutor pointed out at the very start is this: that we can make those mistakes and can be lucky enough that there is no other car immediately around us, and all that happens is that our car lands up somewhere it should not. And if that happens, you are probably charged with driving without due care and attention. But when there is another vehicle in the pathway of your car and it has catastrophic consequences – this case, the death of one person, the serious injury, not quite amounting to grievous bodily harm, but clearly very close, to another person – then there must be a serious and substantial consequence.
- And I can tell you it is one of the hardest things that I do as a sentencing judge, because I have lost friends and family in motor vehicle collisions, and it is not an accident, because an accident is something that cannot be prevented. This was preventable. This was a preventable motor vehicle collision and it was preventable if you had been paying the appropriate care and attention.
- So like everybody, I have been touched, I have grieved, as do the family of Ms Cotsall. They have had a loved and cherished mother, grandmother, great grandmother, taken from them before her time. I have read their victim impact statements. As best as anyone can, I appreciate the depth of their grief and sorrow. It seems to me that your apology acknowledges their grief and understands, as best you can and as I can, the depth of their grief and sorrow. And, of course, you cannot reverse what you have done. That is the profoundly sad thing. There is nothing that can turn back the clock and change what has happened.
- Now, you have had a difficult life. I understand that. I have read the report. I am not going to go back through all of the detail of it. You are the mum of three young kids. That is a relevant issue in my sentencing process. It is not determinative. Just because you have got young kids does not keep you out of jail. I have read the victim impact statements and, in particular, the victim impact statement of Ms Cotsall-Smith. And with what I think is extraordinary compassion, at p. 3, she speaks about the issue of punishment and she is, of course, very well-aware that that is a matter for me, but what she says is, again, relevant but it is not determinative. It does not decide the issue. But she appreciates, very keenly, the importance of a child being denied the presence of their mother.
- So these are all relevant issues that I have to take into account. It is submitted, and I accept, that this is not momentary inattention but it is a very short period of distraction. And some of the important issues: you were not speeding, you were not affected by drugs, you were not affected by alcohol, and the period of distraction – we cannot say for sure but it must be a very short period – but, of course, it only required a very short period to have this catastrophic result. You failed to take the corner, you crossed double white lines, you collided directly with Ms Cotsall-Smith’s car, and you caused the injuries which resulted in her mum’s death and Ms Cotsall-Smith’s serious injuries, amounting not quite to grievous bodily harm. So that is your criminal conduct: that relatively short but catastrophic period of time, but that is all it took.
- I take into account your plea of guilty, which is at a very early stage. It took some time for the police to charge you but once they did, this matter proceeded very quickly. You cooperated at the scene. Although you did not take part in a formal record of interview, you made admissions to the police at the scene that would no doubt have been used against you if the matter went to trial. You proceeded very quickly through the court process. As the prosecutor explained to me, that was dealt with very promptly by their team and you were able to enter a plea of guilty last year.
- The circumstances are such that you have obviously explored the arrangements available to you in respect of your children – very sensible. You should make no presumptions about the outcome of a matter such as this. But, as your counsel has explained, none of the options for looking after your children are terribly satisfactory, but you have at least explored those options.
- I am faced with a series of comparative decisions that make this a very difficult decision for me. On the one hand, there are cases where sentences involving no actual custody have been imposed and falling in relatively similar circumstances on the other side, there have been cases where some period of actual custody is involved. So it is a very difficult and agonising decision from my point of view.
- The sentence submitted for by the prosecution is two and a-half to three years with you to serve some reasonably substantial period of it. Your counsel submits for a sentence in the order of two to two and a-half years, and asks for it to be fully suspended. Both your counsel and the prosecutor agree that a substantial period of licence disqualification must follow, and that is, of course, going to create some significant inconvenience for you as a young mum, whatever the circumstances are after today, but that is an inevitable consequence of driving a motor vehicle and causing the outcome that you have as a result of this collision.
- Weighing up all of those factors, taking into account the decisions that have been outlined in detail by both the prosecutor and defence counsel, doing the best I can to balance but not give undue weight to your circumstances of being a mum of young children and what I consider to be the extraordinarily compassionate and insightful comments by Ms Cotsall-Smith, I am ultimately of the view that the sentence, as best as possible, that reflects the seriousness of this offending, is a prison sentence. There is, of course, no alternative but a prison sentence, given the serious circumstances.
- You are convicted and sentenced to two and a-half years imprisonment. What I have agonised about is how that should be served. I am ultimately of the view, taking into account, in particular, the report from the psychologist, Ms Jones, that the appropriate way to deal with it – and you will need to undertake steps yourself to ensure that you give yourself the best opportunity of living the rest of your life as happily as possible – but the appropriate step is to wholly suspend that sentence. There will be an operational period of three years.
- I make it very clear: if you commit any offence at all punishable by imprisonment in the next three years, you will be brought back to this court and you will be called on to show cause why you should not serve the whole or some portion of that two and a-half-year head sentence. You are disqualified from holding or obtaining a licence for a period of three years. That is a long period of time. It is exactly the same period of time as the operational period of your suspended sentence. That is deliberate.
- If you were stupid enough or foolish enough to drive while disqualified – that is a criminal offence – well, it is a traffic offence but with criminal consequences – it would breach your suspended sentence. It would almost inevitably see you go to jail. So that would be utterly foolish, and I sincerely hope that does not happen. I have taken into account, of course, the fact that you have no criminal history. You have got a minor and fairly irrelevant traffic history. You were 29 at the time; you are now 30 – and all those other matters that I have outlined in some detail.
- Now, before I finish, I want to say something. I said to you before that like everybody, I suspect, in this courtroom, I have been touched and grieved by the unnecessary loss of friends and family in motor vehicle accidents. I lost a cousin who, through his own misjudgement, killed himself and injured his girlfriend. His family have never recovered from that and it is a matter of enormous grief, still. I have lost friends and acquaintances, and I am just one of two and a-half, three million people in Queensland. So every one of us are typically touched by one or two degrees of separation about the tragic and unnecessary loss of life in motor vehicle collisions which were preventable, which, if someone had not done something, whether it be, like yours, a relatively small period of distraction or, of course, something much more serious, driving like an idiot, driving while speeding, etcetera.
- What I say to everyone who is standing where you are standing now is this – and I do not say this as a judge, so as one human being to another: when you leave this courtroom, of course, there will be a period of relief, there will be a period of coming to terms with what has happened, coming to terms with the sentence, and how you are going to live your life. But once you get through that, I ask this of you: although we can educate others about the dangers of dangerous driving, there is no person better equipped to educate others than someone who has been through your experience.
- I could get up in a classroom of kids or stand up with a football club and say, “I am a judge, I have sentenced” – and I have lost track of how many people I have sentenced for your offence, every one of them causes me profound sadness - but I am not walking in your shoes. If you were to, within your own ability – and it might not involve going into a classroom, it might involve just talking to a couple of people in a coffee shop - but if you were to become an educator in any way possible of others and help prevent any one of them from taking the risks that end up in someone being seriously injured or killed then we will all be grateful.
- None of us will know because this is the sort of invisible education process that just occurs as a result of individuals like you, if you choose – and this is not me forcing you to do anything – this is a choice – but if you were to choose to educate others, either formally or informally, as part of a program or off your own back then I have no doubt that, in time, you will contribute to a steady decrease of the road toll but you will not know because you are just part of what, hopefully, are a number of people doing it. So think about that, in time, perhaps, get in touch with those who undertake education in a formal sense because you have the capacity and you have been through the experience that might make a difference.
- The other thing that today does, of course, is it draws a line for everyone, and that is very clear from the victim impact statements. The family of Ms Cotsall are here. They are grieving as best as possible. This draws a line under this stage of that process, and that is important because your apology, and their victim impact statements indicate that we are all human beings. We are all touched by, we all grieve for, and we are all moved by this sad and utterly unnecessary loss of life, and I hope that from this point on, you resolve to sit down and look at your life and how you choose to live it, and how it can be a better life for you, a better life for your children, and one in which you are careful to the highest possible level about how you conduct your life, and particularly at whatever stage you start driving again, that you drive constantly aware, every second of every hour of every day that you drive, of your responsibility to yourself, but, most importantly, to everybody else on the road so that, hopefully, as a community, we will grieve less, we will lose less members of our community unnecessarily, and that, of course, benefits us all. Now, is there anything else that I have missed?
- MR COOK: No, thank you, your Honour.
- HIS HONOUR: Thank you, Mr Cook.
- MR WHITTON: Thank you, your Honour.
- Published Case Name:
R v Crosby
- Shortened Case Name:
R v Crosby
 QDC 30
23 Jan 2019