Day v R

Judgment 1HOEBEN CJ at CL: I agree with McCallum J. 2McCALLUM J: Stephen Day seeks leave to appeal against the sentences imposed upon him in the District Court after he pleaded guilty to an offence of manslaughter contrary to s 18(1) of the Crimes Act 1900 and an offence of dangerous driving causing grievous bodily harm contrary to s 52A(3)(a) of the Act. In sentencing the applicant, the judge was asked to take into account two further offences of dangerous driving causing grievous bodily harm on a Form 1. The applicant also asked to be sentenced in respect of two related matters on a s 166 certificate, being an offence of driving under the influence of a drug and driving having worked more than 12 hours in 24 hours. The sentences imposed for those offences are not challenged. 3The offence of manslaughter carries a maximum penalty of imprisonment for 25 years. The maximum penalty for an offence contrary to s 52A(3) is imprisonment for 7 years. 4The circumstances of the offences were tragic for all involved. The applicant was sentenced on the strength of the following agreed facts: "About 7.40am on Saturday 10th April, 2010 the Offender was the driver and sole occupant of a Mack heavy rigid tipper vehicle registered number PJS-405 (NSW) which was towing a tipper dog trailer registered number P-87015(NSW) in a nominal westerly direction upon the M4 Motorway, a road area in the State of New South Wales, at Orchard Hills. On that day the offender woke at 3:30am. He commenced work at 4:30am at his usual place of employment, Penrith Sand and Soil at South Penrith. The work assigned the offender was to depart the yard at Harford Street South Penrith at 4:30am and travel empty to Somersby for the purpose of collecting a load of sand. The offender was in a convoy with two other trucks and they stopped briefly at Thornleigh McDonalds to purchase food at about 5:10am. The offender then travelled to Sommersby arriving at about 6am. He was back on the road by approximately 6:20am. He travelled in the same convoy with the other trucks. The offender subsequently told police that he commenced the return journey to Penrith. He recalled catching up to his younger brother Matthew Day who was driving a 4th truck and after a brief stop on the M2 he followed Matthew Day on the M2 and subsequently onto the M7 and then onto the M4 to the point of collision. At the time the vehicle combination was laden with sand with a Gross Weight of 47.78 tonnes. The Offender's vehicle was travelling at a speed of approximately 100 kilometres per hour. The Offender's vehicle combination occupied the lane closest to the nearside road shoulder, often referred to as Lane 1. On the approach to the diverging off-ramp of The Northern Road Overpass the Offender's vehicle combination gradually diverged to its left whereupon it crossed the unbroken edge line and entered onto the road shoulder, more commonly referred to as the 'breakdown lane'. Having entered that road shoulder the front of the Offender's vehicle combination collided with four bicycle riders all of whom were also riding in a nominal westerly direction upon that road shoulder of the M4 Motorway. One of the cyclists, Mr David Williams became caught and dragged under the vehicle for a distance and sustained fatal injuries. (Count 1 on the indictment) Ms. Monique De Abreu, aged 20 at the time of the collision, suffered a fractured left hand and crushed wrist which required internal fixation with screws. Her left elbow was deeply lacerated requiring stitches and her left shoulder (scapula) was fractured. She also sustained a head injury and a deep laceration next to her left eye which has left a significant scar. She sustained lacerations to her legs and has a significant scar on her right leg. She was admitted to Nepean Hospital under the care of Dr DEY. A CT scan of her brain revealed small bilateral frontal contusions (bruising of the brain). Further examination revealed a fracture of the left forearm (ulna styloid), fracture of the 5th metacarpal which was displaced and comminuted, small apical pneumothorax discovered on chest x-ray and a left sided shoulder fracture below the level of the glenoid fossa. Monique was then taken to theatre for operative closure of multiple abrasions (4 involving limbs-left elbow, left wrist & left hand, 1 involving left outer canthus) and open reduction and internal fixation of the fracture of the 5th metacarpal with 3 x 1.3mm scews [sic]. Monique remained in hospital for 9 days. (Count 2 on the indictment) Mr. Robert De Abreu, aged 26 at the time of the collision, suffered a fractured right forearm (ulna mid-shaft), dislocated right wrist and severe grazing to his lower back. He was admitted to Nepean Hospital and under Dr Charles NEW, Orthopaedic Surgeon for operative fixation of the right ulna fracture on 12/4/10. He was operated on under general anaesthetic to insert a plate and screws. He remained in hospital for 6 days. (Form 1) Mr. Mathew La Motta, aged 23 at the time of the collision, suffered a broken left wrist which required surgery and insertion of a steel plate. He also sustained a large laceration to his right knee and right elbow which required stitches. He was admitted to Nepean Hospital under the care of Dr CHEN. Medical examination revealed he had sustained a comminuted fracture of the left distal radius. Dr SMITH, Orthopaedic registrar, operated on Matthew for washout and debridement of the right elbow and right knee wounds along with closed reduction of left distal radius. A CT of his spine disclosed a compression fracture of the T7 and T8 vertebrae which did not require surgical intervention. He remained in hospital for 4 days. (Form 1) Following the initial impact, the Offender's vehicle combination continued along the shoulder of the roadway whereupon it was involved in six (6) separate impacts with road side furniture items consisting of guard railing, street light poles and an information sign before coming to rest on an embankment approximately 780 metres from its departure from the roadway. The first person to speak to the offender was his brother Matthew Day who was travelling in his truck about 100 metres ahead of the offender's truck at the time of the collision. Matthew Day observed the accident occurring in his rear view mirror and ran back to the offender's vehicle once he had brought his own to a stop. He opened the Driver's door and assisted the offender out. The truck was on the roadside embankment, at a precarious angle. Matthew Day told Senior Constable Ibrahim, in a statement taken that same day that the offender had a puzzled look on his face as he pulled him out of the truck. Matthew Day told police that after the accident they stood away for the vehicle in the breakdown lane, where Matthew asked the offender "what the fuck just happened?". He said that his brother replied "I think I blacked out. I remember telling you I felt sick, the next thing I know you're dragging me out the truck door". The offender was interviewed by investigating police the following day. When asked "what can you tell me about the crash?" the offender told Senior Constable Bain, "we were driving round (sic) the M4 talking about the eggs and bacon. I said "I felt, I was going to be sick (on the radio) and before I even got to finish hanging up the mike the whole road just went black. That's it. And then I just remember me brother standing on the side of me truck. I didn't know (what) had happened". Apart from hitting his head during the collision the offender was uninjured. At the time of the collision the weather was fine and sunny, the divided, multi-lane bitumen roadway was dry and in good condition and the traffic was considered to be light. The sun, which had risen well above the horizon, was behind the Offender's direction of approach. In accordance with the Mandatory/Blood/Urine sampling legislation the Offender was Arrested and conveyed to Nepean District Hospital where those samples were obtained (Sample No.D21094). The blood and urine samples were taken at 8.50am on the 10 April 2010. The analysis of the blood/urine sample (D21094) subsequently returned a positive reading to the prohibited substance 'Cannabis' (Delta-9-tetrahydrocannabinol 0.028mg/lt & Delta-9-THC acid 0.14mg/lt). A report was obtained from Dr. Judith Perl. The blood concentrations of the THC and delta-9-THC acid indicate that he had ingested cannabis within 2 to 3 hours of the blood sample being obtained, in Dr Perl's opinion, blood concentrations of delta-9-THC above 0.010 mg/L are associated with impairment. A report was also obtained from Associate Professor Graham Starmer who opined that "given the concentrations of THC and THC acid in a blood sample, it is possible to calculate the time of last exposure to cannabis and its 95% confidence limit using the method of Huestis et al (1992). Applying this calculation to Mr Day's blood levels of cannabinoids, I estimate at the time of last exposure to cannabis was 1.67 hours before sampling with 95% confidence limits of 0.63 - 4.39 hours". This estimate is in accord with that of Dr Perl. Dr Perl further indicated that, based on the symptoms described by the Offender, his manner of driving (veering out of his traffic lane) and his high blood level of THC (and THC acid), at the time of the collision the Offender's ability to drive was "very significantly impaired" due to cannabis toxicity but that the "level of impairment did not amount to very substantially impaired". In a further report Dr Perl indicated that there was no scientific evidence or "statistics" to suggest cannabis induces "blackout" and the pharmacological profile of cannabis would not suggest a hypothesis that blackouts are possible. During the investigation the data relating to the Global Positioning System (GPS) fitted to not only the Offender's vehicle combination, but other vehicles in the company fleet were obtained in conjunction with Enforcement Officers of the Roads and Traffic Authority. That data, supplemented by work diaries, receipts and other documents subsequently seized were provided to a forensic analyst for compilation and review. From that analysis it was determined that the Offender had grossly exceeded his permissible work hours whilst the driver/operator of a heavy vehicle between 1st March, 2010 and the day of the collision. Those excessive work hours in the four (4) days leading up to the collision fell within the 'Critical' and 'Substantial' categories. An expert opinion in relation to fatigue was obtained from Professor Anne Williamson. Professor Williamson's opinion is that the Offender on the 10 April 2010 was "highly likely to be fatigued" and therefore his driving "would have been impaired". Analysis of the Offender's vehicle activity reports and daily work sheets show the Offender had no rest breaks during his work periods which exacerbated the Offender's levels of acute fatigue. She stated "there is little doubt that Mr Day was experiencing chronic and acute fatigue on 10 April 2010". She further stated "Mr Day was vey [sic] likely to have been fatigued when he started his work shift on 10 April 2010 and he had no rest breaks from driving on that day". In respect of those work hours the data indicates that the Offender performed work from 3.25am on Friday 9th April, 2010 to 10.32pm that same evening, a total of 12 hours and 30 minutes work time. In relation to the period of rest required in order to nullify the effects of his fatigue over the week leading up to the 10 April 2010, in her opinion "he would have needed an extended period in which to obtain rest and sleep. It is doubtful that his would have been achieved in only 24 hour break. Even 48 hours off work may not have been sufficient to obtain full recovery". Based on the information available of the Offender's working and resting pattern in the period leading up to the crash, Professor Williamson was of the opinion that "it is highly likely that fatigue was a causal factor in the M4 accident". In her report she also states "other characteristics of the crash also point to fatigue-involvement, including the fact that there was no evidence of speeding, he responded feeling unwell and he made little attempt to brake until well after the collision with the cyclists, suggesting that he was not aware of what was happening around him". Both feeling unwell and consuming cannabis within a few hours before driving are factors that can adversely affect the driving performance and accentuate the effects of fatigue. The very significant impairment of the Offender's driving ability at the time of the collision due to cannabis toxicity, in combination with the effects of acute and chronic fatigue, whilst driving a 47.78 tonne truck at a speed of 100 kilometres an hour constitute an unlawful and dangerous act carrying with it an appreciable risk of serious injury or death such that the resulting death of David Williams amounts to Manslaughter. The dangerous manner of the Offender's driving in those circumstances caused the grievous bodily injury sustained by the other three cyclists." 5The applicant was aged 27 years at the time of the offences and 30 years at the time he was sentenced. He was married and had three children, one of whom is autistic. His wife ended their relationship shortly before he was sentenced. 6The applicant was an experienced truck driver. At the time of the offences he had been working long hours for a significant period of time due to financial pressure. He was very anxious and was having difficulty sleeping. In a pre-sentence report prepared by the probation and parole service, he was recorded as having admitted to smoking cannabis on a nightly basis for approximately one year prior to committing the offence, claiming that the drug "helped him sleep". It must be observed, however, that the agreed facts tendered at the proceedings on sentence establish unequivocally that the applicant must have smoked cannabis early that morning. The blood and urine samples were taken at 8.50am. Dr Perl's uncontested opinion was that the levels indicated the ingestion of cannabis 2 to 3 hours before the samples were obtained, which was after the applicant began driving that morning. 7At the proceedings on sentence, the applicant relied on a report prepared by a psychologist, Dr Jacmon. He expressed the opinion that, at the time of the incident, the applicant was suffering from depression and anxiety at "clinically significant levels" due to the harsh conditions of his employment. The applicant told Dr Jacmon that he was required to work 14 hour shifts or longer, six days a week without a break. If he stopped to rest by the side of the road he was directed to continue driving. He was told he faced dismissal if he complained about his working conditions. He was financially dependent on the job to pay rent and support his family. 8The sentencing judge referred to that evidence but nonetheless found that the applicant's moral culpability was of a high order. Her Honour referred to evidence given at the proceedings on sentence as to the conduct of the employer. An employee of Roads and Maritime Services gave evidence that the employer had committed clear and consistent breaches of the regulation relating to long distance truck drivers. 9The judge noted that the applicant's pleas of guilty were entered in the Local Court and allowed a discount of twenty five per cent. For the offence of dangerous driving occasioning actual bodily harm, her Honour sentenced the applicant to a fixed term of imprisonment for 3 years commencing on 24 February 2012. For the offence of manslaughter, taking into account the matters on the form 1, the applicant was sentenced to a non-parole period of 6 years commencing on 24 February 2013 and a balance of term of 3 years. The overall sentence was accordingly a total sentence of imprisonment for 10 years with a total non-parole period of 7 years. The applicant is eligible for release on parole upon the expiration of the non-parole period on 23 February 2019. 10The first ground of appeal is that the sentencing judge erred in failing to take into account the applicant's mental condition in assessing moral culpability. 11As already noted, the opinion of the psychologist was that, at the time of the incident, the applicant was suffering from depression and anxiety at clinically significant levels due to the harsh conditions of his employment. The psychologist expressed the opinion that those symptoms diminished the applicant's ability to formulate a reasoned judgment at the time of the accident, leading him to self-medicate on marijuana to induce sleep. 12The sentencing judge expressly referred to those remarks. It was submitted, however, that her Honour did not take that factor into account in assessing the applicant's moral culpability, "instead" coming to a conclusion that the applicant's moral culpability was of a high order. The submission appeared to assume that the conclusion her Honour reached could not sit consistently with the opinion of the psychologist. In my view, while the outcome may seem harsh to the applicant, that conclusion was open to her Honour. It is not for this Court to substitute its own view for a conclusion properly reached within the sentencing judge's discretion. Her Honour noted that, while the applicant may have been under significant pressure from his employer, "at the end of the day he was an experienced driver who would have known full well the potential consequences of driving acutely and chronically fatigued and significantly impaired by the ingestion of cannabis". That was a perfectly reasonable conclusion, in my view. 13The conduct of the employer was nothing short of appalling. One cannot help feeling angered by it, and sorry for the applicant and indeed other truck drivers faced with such harsh (not to mention illegal) conditions in order to maintain their employment. Ultimately, however, I do not think it can be said that the sentencing judge's conclusion as to the applicant's moral culpability was not open. Her Honour was not required to excuse what was otherwise undoubtedly moral culpability of a high order on the strength of the psychologist's report. 14Ground 2 is that the sentencing judge erred in the proportion between the non-parole period and the overall sentence. For the offence of manslaughter, the non-parole period was two thirds of the total sentence for that offence (9 years with a non-parole period of 6 years). However, the effect of the 12 months accumulation between the two sentences that the overall proportion was 70 per cent (10 years with a non-parole period of 7 years). 15The applicant submitted that the additional term was extended "only by a period of 26 weeks in a 10 year sentence". It was submitted on that basis that the non-parole period, despite the finding of special circumstances, did not achieve the purpose of the finding. 16The judge said that there was a need for a "lengthier than normal period of parole" as this was the applicant's first time in custody and, since he was suffering from depression and anxiety, he would need ongoing psychotherapy and drug and alcohol counselling. For that purpose, the sentence allows a period of three years. Although it would have been open to take a more merciful approach, I do not think it can be said that a period of three years is erroneously inadequate for the purpose identified. I would reject ground 2. 17Ground 3 is that the sentence is manifestly excessive. In support of that submission, the applicant provided a table of motor vehicle manslaughter cases from 1991 to date. From that table, the following cases were relied upon as highlighting the alleged manifest excess in the sentence imposed upon the applicant: R v Cramp [1999] NSWCCA 324; (1999) 110 A Crim R 198; R v Ryan [2000] NSWSC 724; R v Do [2000] NSWCCA 459; R v Lawler (2007) 169 A Crim R 415 and R v Winter [2012] CCA 218. 18I do not think those cases establish that the sentence imposed for the offence of manslaughter in the present case was outside the proper range. The offending in Cramp was undoubtedly more serious than that in the present case serious. The applicant encouraged a drunk 16 year-old girl to drive at high speeds with 3 other children in the back of the car. She was killed when inevitably she crashed. The offender's conduct was described in the following terms in the judgment (at [105]): "It is difficult to imagine a more serious course of conduct than that followed by the appellant. What took place happened over a period of about three and a half hours and over a distance of thirty-five kilometres. The appellant was the only adult having the care of four children. He was aware that he was too drunk to drive and, in order to avoid the consequences to himself of drinking and driving, encouraged the deceased to drive. It was he alone who supplied alcohol and encouraged her to drink it. Three young children as well as the deceased were put at risk. Very high speeds were reached on the direct encouragement of the appellant to drive faster. All this was done in the face of the fear of the three boys, their entreaties and efforts to bring the career to an end." 19The offender was sentenced to a term of imprisonment for nine years and four months, comprising a minimum term of seven years and an additional term of two years four months. In dismissing the offender's appeal against that sentence, the Court said (at [107] to [109]) per Barr J; Sully and Ireland JJ agreeing at [1]): "In fixing the sentence his Honour referred to the offence of aggravated dangerous driving occasioning death, provided for in s 52A(2) Crimes Act, the maximum sentence for which is fourteen years' imprisonment. His Honour observed that that was the crime which in his opinion most closely resembled the crime for which he was punishing the appellant and took fourteen years' imprisonment to be a general guide to the current opinion of the Parliament concerning the maximum sentence for motor vehicle manslaughter. His Honour erred in making that observation and that comparison. The offence for which his Honour was sentencing the appellant was manslaughter, a much more serious offence than aggravated dangerous driving causing death. The maximum penalty was penal servitude for twenty-five years. His Honour's error favoured the appellant. In my opinion this case was of such a serious nature as to be seen as falling into the worst category of cases of its kind. The sentence imposed was not manifestly excessive." 20It is accordingly plain that the sentence imposed in Cramp cannot be seen as a proper comparator for the purpose for which it was relied upon in this appeal. The Court of Criminal Appeal appears to have regarded it as being too lenient. 21Ryan was a case involving a truck driver who, in a state of tiredness and amphetamine-induced intoxication, intentionally drove onto the wrong side of the road. Unsurprisingly, there was a collision and two people were killed. He pleaded guilty to two counts of manslaughter. He was sentenced by Adams J to a term of imprisonment for seven years and ten months with a non-parole period of five years and ten months. 22In written submissions in the present case, the applicant relied on remarks made by Mr Ryan to a doctor after the accident suggesting that Mr Ryan intended to kill the victims. However, the judgment records that Adams J did not accept that those remarks reflected Mr Ryan's state of mind at the time of the accident. His Honour said (at [19]): "It is at least reasonably possible that his statements in the hospital, themselves probably exaggerated, were a reconstruction warped by the intensity of his emotions resulting from the amphetamine intoxication combined, I rather think, with profound feelings of guilt". 23It may be accepted that the circumstances in Ryan bear some similarities to the present case and that the sentences imposed were more lenient. That does not of itself establish that the present sentences were erroneously excessive. 24Do was a case involving a truck driver who, overlooking a warning that said "Trucks must use low gear", was seen to accelerate away very quickly from the top of a hill, reaching "a terrifyingly high speed". He tried to put the truck in gear to slow it down and tried to warn others by flashing his lights and sounding the horn as the truck "careered out of control". He collided with a car and a house killing the driver of the car and a young girl in the house. He pleaded guilty to two counts of manslaughter. He was sentenced to wholly concurrent terms of imprisonment for 4 years comprising a minimum term of 3 years with an additional term of 1 year. In dismissing a Crown appeal against the leniency of those sentences, the Court said (at [22] per Beazley JA as her Honour then was; Wood CJ at CL and O'Keefe J agreeing): "In my opinion, the sentences imposed by the trial judge were not manifestly inadequate, although I consider them to be at the very bottom of the range. However if, contrary to my view, the sentences did fall outside an appropriate discretionary range, I am of the opinion that when the principle of double jeopardy is applied, this Court should not interfere." 25I do not understand the applicant's reliance on the decision in Lawler. That was a case in which a truck driver who drove knowing that his brakes were in poor condition was unable to stop as he approached a traffic jam. His collision with the congested traffic resulted in the death of one person and grievous bodily harm to two others: he pleaded guilty to one offence of manslaughter and two offences contrary to s 52A(3)(c) of the Crimes Act. He was sentenced to a total effective sentence of ten years and eight months with a non-parole period of eight years. An appeal on the sole ground of manifest excess was dismissed. The applicant relied upon the fact that the offender in that case knew that his brakes were defective and the tyres were worn, which this Court regarded as being significant in the assessment of his moral culpability. Equally, however, the applicant in the present case knew he was extremely tired and that he had smoked marijuana before driving that morning. I do not think the decision in Lawler assists the applicant. 26The decision in Winter is equally unhelpful to the applicant, in my view. Ms Winter pleaded guilty to two counts of manslaughter after she hit two pedestrians. Dr Perl's evidence in that case was that Ms Winter was "under the influence of cannabis to the extent that her driving ability was impaired, but it is also possible that there was additional impairment due to some uncontrolled medical condition capable of producing blackouts." The sentencing judge found that she had blacked out but also found that she had previously blacked out which contributed to her culpability. The Court upheld a Crown appeal, imposing a sentence of imprisonment with a non-parole period of 4 years and an additional term of 3 years for each offence. The sentences were accumulated by 2 years, giving an overall sentence of 9 years with a non-parole period of 6 years. 27As acknowledged at the outset of this judgment, this was a tragic accident with tragic consequences for all involved. However, it was not a case of momentarily ignoring a warning. The agreed facts establish that the applicant got behind the wheel of a Mack truck with a heavy load in a state of acute exhaustion and having recently smoked marijuana, a drug he says he would smoke to help him sleep. The uncontested facts were that he smoked that drug within hours before driving, in which case he must have smoked it in the early hours of the morning. He should not have driven in those circumstances. The consequences were tragic, not only for the man who died but for the three other victims, each of whom suffered serious injuries. One of the victims now suffers from post-traumatic stress disorder. Another has suffered a brain injury of mild severity as a consequence of the accident. 28I would accept that the overall sentence imposed was stern. One cannot help feeling greatly saddened by the impact of this accident on the applicant as well as on the victims and their families. However, I do not think it can be characterised as erroneously excessive. 29For those reasons, I would dismiss the appeal. 30BELLEW J: I agree with McCallum J. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 December 2014