It is four months since the verdict. We all felt ill.
The judge read from his summary:
The following is an excerpt from judge’s sentencing remarks produced with permission of the South Australian Attorney-General. For reproduction or publication beyond that permitted by the Copyright Act 1968 (cth), written permission should be sought from the State Attorney- General. Also, the record does not purport to be the official or authorised version of the proceedings and the Attorney-General does not accept responsibility for the accuracy of this production.
‘At the trial, you gave evidence that you had last taken those drugs (Serepax and Valium) about two weeks prior to the accident. The fact that an analysis of blood taken after the collision detected the presence of those drugs is a reason to doubt your evidence as to your consumption of drugs. Similarly, the detection of 0.3 mg of morphine is an objective fact which contradicts your evidence about your use of morphine during the 24 hours prior to the collision.
Professor White, who gave evidence at the trial, describes the concentration of 0.3 mg per litre of morphine as a very high concentration. He would expect such a concentration to impair the faculties relating to driving. He said that the risks would be increased by the levels of Oxazepam and Diazepam found in your blood. No-one will ever know what drugs you had consumed in the 24-hour period prior to the accident, but the objective evidence makes a lie of the evidence that you gave and establishes that your consumption must have been greater than you claim.
In this case, a man, Bill Cook has lost his life and his family has suffered. Their victim impact statements have been read out in court. I have read a comprehensive and most useful report from the Centre for Restorative Justice, following a restorative conference which took place on 30 August this year. I cannot describe the grief and enormous loss suffered by the family of Mr Cook. The lives of many people have been affected significantly.
The extent of the family’s loss was made plain and accepted by you at the restorative conference. Following the restorative conference, you apologised to Mr Cook’s family for their loss. The apology was accepted as both sincere and genuine.
I mention in passing that the report states that this was the first time that the restorative process has been undertaken at a pre-sentence stage in this country.
Your involvement in the process, the fact that you were prepared to confront the victims and the outcome of the conference indicates your contrition. At the conference, you spoke openly about your drug dependency and said that you wished it did not exist. The family of the victim does not demand a custodial sentence; however, the decision is not theirs and the court must also consider the protection of other road users and the requirement of general deterrence. The views of the family are a matter to which I attach importance
You are 41 years of age and attended school in South Australia. You had a relatively normal upbringing and schooling. You participated in many sports, including waterskiing and horse riding. When you were in Year 12, you suffered an injury to your knee. Since that time, you have been plagued with knee problems and pain. You have had more than 30 operations on your left knee and 10 on your right knee. You have severe osteoarthritis of your left knee and the knee joint spontaneously dislocates.
You were convicted of offences in 1987, 1992 and 2001. The two most recent convictions concern the forgery of prescriptions for drugs.
As a consequence of knee pain, you have required extremely heavy doses of pain-killing medication. You have been addicted to opiates. I proceed on the basis that the addiction was an illness which was out of your control and is not something for which you should be criticised. It is something which helps put your offending in perspective.
There is clear evidence that you have serious problems with both your knees and bowel, and suffer from chronic pain. Since the accident, you have been largely confined to bed, you require a special diet, your pain requires constant monitoring and you are treated with drugs that include morphine and pethidine. There is no indication that a radical improvement in your medical condition will occur in the short term.
I accept that there will be difficulties in treating you properly in gaol. The drugs which you require may need to be administered in the infirmary. There is no infirmary at the women’s prison and you would have to be admitted to the infirmary at the Yatala Labour Prison. Pethidine is not used in the gaol at all. The prison doctors would attempt to wean you off morphine and use a substitute. If the treatment plan of the prison doctors did not succeed, you might have to remain in the infirmary at Yatala indefinitely. The fact that specialist members of the medical profession have been struggling to deal with your pain for more than a decade suggests that a quick improvement is unlikely to occur with any new regime which may be implemented in gaol.
I accept that the combination of your knee and bowel problems, pain, confinement to bed, special dietary requirements and the need for a very strong regime of pain-killing medication means that your condition would be extremely difficult to manage in the prison environment.
The offence is serious. A sentence of imprisonment is required. I fix a term of imprisonment of 24 months and a non-parole period of 12 months.
I have considered the argument of the prosecutor in support of an immediate custodial term. I have concluded that there is good reason to suspend the sentence. In reaching that conclusion, matters which I have taken into account include the circumstances in which the offence occurred; it was not the usual case of bad driving. Your driving with a very high level of drugs must be considered in the context of your need and usage of drugs over more than a decade and the fact that you may have become oblivious to the risks. It was the use of the drugs in the management of your pain that had enabled you to work and lead a useful life. I am hopeful that a suspended sentence will allow you to get your life back in control and return to employment. You can still be a contributor to society.
I have also taken into account the matters discussed in the report of the Restorative Justice Centre. I also think that, because of your ill-health, disability and frailty, it would be unduly harsh for you to serve any time in prison.
The bond which I am about to offer will include a home detention condition.
The sentence of imprisonment will be suspended if you enter into a bond in the sum of $1,000 to be of good behaviour for a period of three years. Conditions of the bond will be:
That you be under the supervision of a community corrections officer for the period of the bond.
That you reside at XXX and remain at that place for a period of six months, not leaving it except for the purposes of remunerated employment, necessary medical or dental treatment, averting or minimising a serious risk of death or injury, or for any other purpose approved or directed by the community corrections officer to whom you are assigned to whom you are assigned.
That you comply with the directions of your community corrections officer as to medical and psychiatric treatment.
That you undergo such medical or psychiatric treatment as may be prescribed by the medical practitioner to whom you are directed by your community corrections officer.
That you abstain from drugs other than those prescribed by a medical practitioner, which must only be taken in the dosages prescribed.
There will be a further condition that you perform 150 hours of community service within a period of 18 months. I have in mind the type of community service described in the post-restorative conference report.
You will be disqualified from holding a driver’s licence for a period of five years.
Ms Day, you have been given an opportunity to get a grip on your life. You need to work with your doctors and the community corrections officer. If you set about it with a positive approach, there is no reason why you shouldn’t return to a useful life as a nurse. You are now free to go.’
I liked the way he spoke. He offered it to her as an opportunity. I felt relieved, the judge had made his decision, which had nothing to do with the documentary and me. I thought the conditions were great. Mum was pleased too.
Nanna was devastated. Dianne was angry, she yelled, "It's the morphine that got her into trouble, and now it's the morphine that's getting her out of trouble." Dianne said it was all our fault, and we shouldn't have signed that form. Independent politician Nick Xenophon (who had been following the trial) took us into a room and talked about how we could make sure she follows the conditions. That calmed Dianne down a bit. Thank God he was there.
Everyone was shell-shocked; we felt a combination of nothingness, disappointment, and relief. Everyone felt like she got off lightly, but we all signed the letter.
For our family, in our grief, it's time to let Andrea go. The law has seen to her. She has apologised. She and her actions have nothing to do with our process any more. It is up to us to move forward.
Written on 19 Oct 2006
Over 8 years since incident
Tags:
legal system, sentencing
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