The trial
17The trial proceeded on a very limited basis. The only element of the offences in contention was whether the Crown had proved that, at the time of the collision which caused the death of Mr Clark and Ms Fraser, the applicant's manner of driving was dangerous by reason of his failure to maintain a proper lookout.
18It was the Crown case that whilst driving a heavy vehicle on an open highway the applicant had failed to maintain a proper lookout as he approached the collision site such that he did not see the hazard in sufficient time to avoid the collision.
19Defence counsel submitted that it was open to the jury to be satisfied of the reasonable possibility that on approach to the collision site the applicant was momentarily distracted and that when his attention was redirected to the road ahead he did not have sufficient time to avoid colliding with Ms Fraser's vehicle. The defence submitted that, in those circumstances, the jury would not be satisfied beyond reasonable doubt that at the time of the impact which caused the death of the deceased, the applicant was driving in a dangerous manner.
20The trial judge directed the jury that the Crown would prove its case if they were satisfied there had been a serious breach of the applicant's proper management and control of his vehicle, and that the breach was so serious that it created a real danger, in the sense of posing a real risk to others in the vicinity. They were also directed that where a lapse of attention by a driver creates a danger of that kind, it may constitute dangerous driving despite the driver's inattention being either casual or momentary. The jury were further directed that whether the Crown proved that the applicant's manner of driving shortly before, and at the time of impact, was dangerous depended upon all the circumstances in which the driving occurred, including such factors as the time of day, the nature of the road surface, weather conditions and the general environment. They were reminded that the use of a motor vehicle is always dangerous, simply because of the risk it poses to others, but that potential risk can be minimised by the driver exercising proper control and management of the vehicle.
21By their verdicts, the jury must be taken to have been satisfied beyond reasonable doubt that at the point of impact the applicant was driving in a manner that was dangerous, despite what was relied upon in his defence as constituting what the sentencing judge described in his sentencing remarks as "proffered sources of distraction".
22These included:
(1)At the scene immediately after the collision the applicant said to a witness, "I think I grabbed my drink bottle and there they were";
(2)The applicant told an attending ambulance officer that he was driving, placed the bottle into the cup holder, looked up and I saw two people in front of him or in front of the truck and that he hit them; and
(3)Approximately a fortnight after the collision, through his solicitor, the applicant provided a signed statement, the effect of which was that, as he climbed the incline to the south, he checked both of his rear view mirrors and moved into the left-hand lane as an extra lane was available. He said that, as he approached what he described as the "first crest", he checked his rear view mirrors again as the third lane was about to merge at the top of the crest. He then said, "After checking both mirrors I looked back and saw a woman on the road immediately in front of my truck in the middle of my lane. I immediately pulled the vehicle hard to the right and heard a bang".
(4)In his statement, the applicant also said that he checked his mirrors because he wanted to know the location of a truck that he had earlier passed and because he believed the left lane was about to end and he intended to merge out of the left lane. The left lane ended 350 metres after the collision site. It was common ground that the applicant's vehicle had only two mirrors, being the left-hand side and right-hand side mirrors. There was no centrally placed rear vision mirror. (He made no mention of the drink bottle in his statement to police.)
23The applicant did not give evidence at trial or on sentence.
24Photographs taken by a police officer of the applicant's truck showed several drink bottles in the footwell of the cabin of the truck but no drink bottle in the cup holder. The police officer also gave evidence that there was a "fridge type system" in the cabin.
25The Crown called a forensic accident investigator. He gave evidence as to the time available to avoid the collision (measured in seconds) from a point on the roadway where the hazard was first visible to a driver in the position of the applicant.
26The expert gave evidence from which the following factual propositions can be derived:
(1)The hazard was potentially visible 300 metres before the point of impact (tree foliage obscured the hazard prior to that point);
(2)The hazard was clearly visible 250 metres before the point of impact;
(3)A vehicle travelling at 100 kilometres per hour has 10.8 seconds before reaching a point that is 300 metres distant;
(4)A driver travelling at 100 kilometres per hour has 9 seconds before reaching a point that is 250 metres distant;
(5)The applicant swerved 7.6 metres (or 0.27 seconds) before the point of impact;
(6)An ordinary driver would take evasive action 2.9 seconds after seeing the hazard (including the time taken to perceive, process and act upon the stimulus created by the hazard).
27The Crown expert was invited in cross-examination to factor into his assessment the various explanations the applicant had given to account for his failure to see the hazard in sufficient time to avoid the collision. He gave the following evidence:
(1)It would take 1.5 to 2.5 seconds for a driver to either remove a drink from or replace a drink into a cup holder mounted in the way the holder was positioned in the applicant's truck; and
(2)It would take 1.5 seconds for a driver of a heavy vehicle of the general kind the applicant was driving to check one rear vision mirror.
28In his sentencing remarks, his Honour noted that, on that analysis of the evidence, a driver who was keeping a proper lookout had 7.9 seconds (10.8 seconds less 2.9 seconds) available to observe a hazard ahead and to take evasive action and that, on the expert's estimation, the applicant's inattention spanned at least approximately 4 to 5 seconds (being 7.9 seconds minus 3 to 4 seconds).
29There is nothing in his Honour's sentencing remarks to suggest that he did not give consideration to that evidence or that he rejected any of the sources of distraction the applicant proffered in the accounts he gave to the witness, police and ambulance officers as not being capable of explaining his lack of attention. What was in dispute on sentence was what conclusions could be drawn from all the evidence led at trial concerning the extent or duration of the applicant's inattention, or the time during which he failed to keep a proper lookout, consistently with the verdicts of the jury.
30It was submitted by counsel then appearing for the applicant that it was not inconsistent with the jury's verdicts for his Honour to sentence the applicant on the basis of a lapse of attention, or inattention, for a period of time which could properly be described as "momentary".
31After detailing what his Honour regarded as the factual findings embedded in the jury's verdicts, he rejected that submission and made the following findings:
... I do not accept [the applicant's] failure to maintain a proper lookout at the critical time can be fairly described as "mismanagement" or "momentary inattention on his part".
...
I am satisfied the jury's verdicts indicate a finding that the offender failed to keep a proper lookout at the road ahead of him for a significant period of time in the circumstances of being a professional driver on a busy highway and where there existed a need to be continuously alert and where the risk to
others is considerable. This indicates a finding that his moral culpability went beyond a classification of "moral [sic] inattention or misjudgement".
32Although the sentencing judge made no finding that the sources of distraction proffered by the applicant were not legitimate (in the sense that a driver may look away from the road to attend to a drink bottle and is required to use the rear or side mirrors as part of the safe management of the motor vehicle), it is clear from the findings he did make that he was not satisfied that, either individually or in combination, they allowed for the applicant's driving at the point of impact to be characterised as involving "momentary inattention". He also observed that, even were the jury to have accepted the sources of distraction proffered by counsel in argument as a reasonably possible explanation for the applicant's failure to maintain proper focus on the road ahead, their verdicts must be taken to have left them in no doubt that he was driving in a dangerous manner at the point of impact.
33It is clear from the sentencing remarks that his Honour reasoned to the conclusion that the applicant was inattentive, and for a significant period of time, after considering all the evidence in the case. He also found that what he described as the "proffered sources of distraction" did not adequately account for the time over which the applicant was inattentive or during which he failed to keep a proper lookout. His Honour reasoned to that conclusion by allowing 10.8 seconds (as opposed to 9 seconds) for the applicant to travel the distance of 300 metres - being the distance from the collision site when the hazard was first visible to a driver in the position of the applicant - despite making the further finding that the hazard was at least clearly visible from 250 metres before the point of impact, narrowing the time taken to travel the intervening distance from 10.8 seconds to 9 seconds. That was a finding clearly favourable to the applicant. So much is clear. After accounting for the passage of 2.9 seconds for evasive action to be taken, his Honour then calculated that the applicant was (theoretically) inattentive for 7.9 seconds. That was an error in that 9 seconds less 2.9 seconds equates to finding of theoretic inattention for 6.1 seconds. His Honour later accepted that he had made an arithmetic error when his attention was drawn to it by the Crown prosecutor. When the arithmetic error was pointed out to him, he said that it did not alter his ultimate conclusion that the applicant was inattentive for a significant period of time.
34On the appeal, senior counsel for the applicant submitted that it was not open to the sentencing judge to find that the applicant failed to keep a proper lookout for "a significant period of time" on approach to the collision site, and that the proper finding (in the sense of it being the only available factual finding on the evidence and the inferences legitimately drawn from the evidence) was that the applicant was inattentive for a much shorter period of time which, according to the calculus senior counsel suggested his Honour seemed to employ, was as little as 0.33 of a second - a time measure which could only be described as momentary. That calculation was expressed as follows: from a starting figure of 9 seconds (time available to observe the hazard) less 5.5 seconds (compound distraction time) less 2.9 seconds (time taken for evasive action) less 0.27 seconds (the seconds before collision where the applicant swerved), with the calculated result being 0.33 seconds. It was then submitted that the criminality inherent in that conduct was of such a low order that the sentences imposed by the sentencing judge were excessive and that this Court should substitute non-custodial sentences by way of re-sentence.
35The Crown submitted that it would be completely inconsistent with the verdicts of the jury for his Honour to sentence the applicant on the basis that his inattention was momentary (whether for as little as one third of a second or some other order of magnitude in the range) as this would be contrary to a finding of criminal liability for the dangerous driving causing death inherent in the jury's verdicts (R v Isaacs (1997) 41 NSWLR 374). The Crown submitted that to mount a challenge to the sentence tethered to the submission that his inattention was momentary, measured in a fraction of a second, was to implicitly challenge the verdicts as unreasonable.
36The Crown further submitted that, on a proper reading of his Honour's sentencing remarks, he did not employ the mathematical calculus attributed to him by the applicant before arriving at his ultimate finding that the applicant was inattentive for a "significant period of time", or at least he did not confine himself to the narrow theoretical calculus attributed to him by the applicant on the appeal according to which the figure of 0.33 was arrived at and advanced to this Court in argument.
37For the applicant to seek to attribute to the sentencing judge such an approach, and then to dissect it for error, ignores the approach his Honour actually took to the fact finding after trial, an approach which the Crown submitted was in strict conformity with sentencing principles.
38In the Crown's further submission, his Honour did not make any express finding that the applicant's account to police and ambulance officers ought be given any weight at all and, even if it be accepted that his Honour afforded it some weight, it displaced the overwhelming weight of evidence in the Crown case which rendered the applicant's failure to see the hazard as explicable only on the basis of a failure to keep a proper lookout over a considerable distance in advance of the collision site or, as his Honour expressed it, for "a significant period of time".
39The Crown submitted that having heard all the evidence at trial, in particular the evidence of the expert as to the distance of 300 metres from the rear of Ms Fraser's vehicle where the overhanging foliage no longer interfered with the view of the hazard ahead to the collision site, the drive-through reconstruction of the collision, and having participated with the jury in a view, his Honour was in an optimum position to determine for himself, consistently with the jury's verdicts, the degree or extent of the applicant's inattention to the road ahead and to sentence him according to that finding so as to reflect the extent of his moral culpability for the deaths.