Director of Public Prosecutions v Anthony David MARKOVSKI

Salient Facts 10The Agreed Facts are marked Exhibit 1 on Sentence. For the purpose of these Remarks on Sentence I will provide my own brief summary. The Offender and his girlfriend, Ms Alana Mercuri, travelled to Brisbane by air on 4 February 2010, for the purpose of purchasing a motor vehicle. The business was completed and the Offender and Ms Mercuri left Brisbane about 8.20pm in the vehicle to travel to the Offender's home in the Central Victorian town of Bylands. They intended to travel by the inland route. The Agreed Facts set out a reconstruction of the Offender's driving times and stops made for fuel and food along the way. 11About 11.20am on 5 February 2010, the Offender was driving the vehicle south on the Olympic Highway at a reconstructed speed of about 78 kilometres per hour. A Mazda sedan driven by May Edna McDonald, 56 years old, and her 91 year old front passenger, Ivy Violet Cardwell, was proceeding north at a reconstructed speed of about 109 kilometres per hour. 12At a point some 500 metres south of the Kapooka Bridge, the Offender's vehicle was seen by the driver of a vehicle following the Mazda to cross unbroken double centre lines onto the incorrect (or northern-travelling) side of the road. This diversion was described by the witness as "a sharp movement rather than a drifting across action". The vehicles approached each other at a closing speed of 52 metres per second and the collision occurred wholly within the northbound lane. The Accident Investigators expressed the view that taking into account the camber of the road, including the crest of the hill, it would not have been possible for the Offender or Mrs McDonald to have perceived and reacted to the imminent danger of the oncoming vehicle to avoid a collision. Both May McDonald and Ivy Cardwell were killed on impact. 13Ms Mercuri was cut from the vehicle and transported to Wagga Wagga Base Hospital. She suffered multiple injuries including broken ribs and teeth, lacerations, bruising and, most significantly, a fractured L1 vertebra. This latter injury required her transport by air to The Alfred Hospital in Melbourne. There she received corrective surgery involving the insertion of two rods in her back to stabilise the injury. The Offender alighted from the vehicle without assistance and first aid was rendered at the scene by the witness and other motorists. At this point he briefly lost consciousness. His injuries consisted of a broken nose and some lacerations and bruising. A blood sample returned a negative result for alcohol and drugs. Although not specifically mentioned, I am prepared to take it the Offender's vehicle was also examined and no mechanical defects or failures found which may have contributed to the collision. 14When the Offender was interviewed about the collision in June 2010, he said that he swerved onto the incorrect side of the road to avoid hitting a small animal, described as a fox or dog, running towards his vehicle from the left. He estimated this placed three quarters of his vehicle on the incorrect side of the road. He said that he saw Mrs McDonald's vehicle approaching and he turned further right to get off the road as that was the direction his vehicle was already travelling. 15For my part, that is a possible version unable to be tested. The witness following Mrs McDonald's car made no mention of seeing any small animal on the roadway before or after the collision. However, as pointed out by Mr Gibson in his submissions, it was almost the first thing the Offender mentioned at the scene and more likely than not to be correct. Again, for my part, and acknowledging the estimation involved in the change-over of driver and stops along the way, I initially felt there might be some element of sleep deprivation, although certainly not established beyond reasonable doubt. Losing consciousness a number of times following the collision, as he told the author of the Pre-Sentence Report, does not exactly qualify him as an accurate historian. The vehicle seemed to have made pretty good time from Brisbane to just outside Wagga Wagga. 16It is at once apparent that there are none of the usual aggravating factors so often seen in fatal collisions such as speed, alcohol or drugs. There is no evidence of any sustained aberrant driving behaviour leading up to the point of collision. As I understand the prosecution's case, it relies upon the allegation that the Offender travelled onto the incorrect side of the road having swerved to avoid some small animal and, in so doing, failed to keep a proper lookout in the circumstances. As I further understand it, the plea of guilty is entered on that basis and the Defence submits that I should regard any culpability as momentary inattention or misjudgement. This is an important concept to understand because it would be quite wrong to conclude that due to a collision in which a death occurred it must inevitably follow that a serious criminal charge has been committed. One does not simply look at the consequences, tragic as they are, and work backwards. 17I refer, for example, to the types of charges provided by section 52A of the Crimes Act 1900, as amended in 1994, and the Guideline Judgments in R v Jurisic (1998) 45 NSWLR 209 at 229-230 and re-formulated in R v Whyte (2002) 55 NSWLR 252 . Even more serious are the so-called cases of motor vehicle manslaughter requiring proof of gross criminal negligence or an unlawful and dangerous act: see, for example, R v Pullman (1991) 25 NSWLR 89 at 97 applied in R v Borkowski [2009] NSWCCA 102. 18None of the evidentiary requirements for proof of these categories of offence are present in this case. That is why the charge is brought pursuant to the Road Transport (Safety and Traffic Management) Act 1999, rather than the Crimes Act 1900. That is why I am particularly mindful of the principles in R v De Simoni (1981) 147 CLR 383 .

The Offender's background 19The Offender is currently aged 22 years and resides in the family home in Bylands (outside of Kilmore), a town in central Victoria. He is nearing completion of an Electrical Apprenticeship. He has no prior criminal history. 20There is a Pre-Sentence Report as part of the Court file. It is a comprehensive document and I do not propose to rehearse the content in any detail. It can speak for itself. The report says the Offender is one of four siblings who enjoyed a loving and supportive upbringing which was otherwise unremarkable. He says none of his friends have been involved with the criminal justice system. He has no physical, mental impairments or disabilities nor any prior need for psychological or psychiatric treatment. The Offender attended for some counselling but at the request of his girlfriend. He is fully employed and sees his future within the electrical industry. There is no prior indication of illicit drug use and alcohol is not a problem in his life. The report says he is at moderate risk of re-offending and that "factors that pertain to his risk level include his age and gender". 21The report concludes that based on the information provided by the Offender during the interview, he has been assessed as suitable for a Community Based Disposition, however, he would gain little benefit from being placed on such an order. He has no drug or alcohol abuse, is currently completing an apprenticeship therefore employed full-time and is presenting with no current concerns or issues. The Service Management Branch would accept the Offender for "informal supervision" should he receive a Community Based order. 22It is clear that the Offender appears before the Court as a person of good character. I am left with the impression that he is a hard-working and otherwise decent individual. That is a mitigating factor to be properly taken into account and I will do so. However, the authorities point out that courts must tread warily in showing leniency for good character in these cases to avoid giving the impression that persons of good character may, by their action, take the lives of others and yet receive lenient treatment: see, for example, R v MacIntyre (1988) 38 A Crim R 135 at 139. See also R v Musumeci (Unreported, NSWCCA, 30/10/1997) . 23I said earlier on in these Remarks on Sentence that notwithstanding the present charge was brought pursuant to what might be called Traffic Legislation as opposed to provisions of the Crimes Act 1900, the matters cannot be regarded as anything other than serious. One only has to look at the penalties provided by law, that is, the potential amount of a fine, the potential term of imprisonment and automatic period of license disqualification to appreciate that. I conclude that the negligence was at the lower end of the scale of offending. 24Both guidance and binding authority is provided to the Court in dealing with an offence of "Negligent Driving cause Death" in the judgment of Howie J in Bonsu v R [2009] NSWCCA 316. That was a Judge Alone trial with the Accused being acquitted of a charge of Dangerous Driving Cause Death (s 52A, Crimes Act ) but found guilty of a back-up charge of Negligent Driving cause Death (s 42(1)(a), Road Transport (Safety and Traffic Management) Act 1999) by virtue of section 166(1)(b) of the Criminal Procedure Act 1986. The finding was based on momentary inattention. The Accused was 28 years of age with no criminal history and a very minor traffic history. The primary judge sentenced the Offender to 200 hours Community Service. He was later presented before another Judge for failing to complete that Community Service and sentenced to imprisonment for three months. Howie J was critical of the approach of the re-sentencing judge. Due to what his Honour felt was undue lenience in the original CSO plus the manner in which the re-sentencing Judge came up with a three month gaol sentence (part of which was served), his Honour was constrained to impose a 12 month Bond under section 9 of the sentencing legislation, adding that the Offender got off very lightly. 25But of particular importance to the circumstances of the present Offender's case (which have surprising commonality with the facts and antecedents of Mr Bonsu) is severe criticism of the way sentencing for the offence of Negligent Driving cause Death has been, and is being, handled in the Local Court and District Court on appeal. It is criticism which cannot be overlooked or ignored. 26The only real factual difference is the ages of the two Offenders - the Offender being 23 years of age and Mr Bonsu being aged 28 years. Otherwise, they share:

• no prior criminal history;
• nil or minor traffic history;
• momentary inattention or lapse in judgment;
• what caused the momentary inattention is left un-stated or is otherwise undetermined;
• subjectively, they are both worthwhile members of society;
• they are persons who could rightly be regarded as of prior good character;
• each was genuinely remorseful and contrite for their actions. 27His Honour was referred to a number of statistical tables and said at [18] - [19]: ... as so often is the case, what they reveal is that the maximum penalty imposed by the statute has little or no impact upon the sentences being imposed. Every time this Court is asked to consider statistics on any offence, other than perhaps murder, the statistics reveal a markedly lenient approach to sentencing, having regard to the maximum penalty imposed. However, the statistics reveal that very minor sentences have been imposed upon offenders who have actually caused the death of another human being, albeit by negligent driving. I have difficulty in understanding how s. 10A or s. 9 of the Crimes (Sentencing Procedure) Act, 1999 can be used for such an offence. It seems to me, that these statistics reveal that little regard, or insufficient regard, is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life. 28His Honour returned to comment upon the only penalty he was able to impose upon Mr Bonsu and warned that it should in no way be regarded as some form of precedent. At [24] he said: Nothing that I say in this matter and the penalty I impose should be taken in any way by either a Magistrate in the Local Court or a Judge in the District Court to indicate that a good behaviour bond is an appropriate penalty for this offence in these circumstances. I have made my view clear, for what it is worth, that the range of penalties being imposed, at least in the Local Court, is inadequate and fails to reflect the fact that offenders charged with this offence have taken a human life. 29It is abundantly clear that Howie J in Bonsu advocates nothing short of a full-time custodial penalty for an offence of Negligent Driving cause Death. In this case, it resulted in the deaths of two completely innocent persons and the infliction of grievous bodily harm upon a third. This remains so even though the individual culpability of the Offender is of a lower order: see Bonsu at [24] . So much is apparent when he said that he would not have interfered with the three month sentence had it been imposed by the original trial judge instead of the CSO which he regarded as inadequate.

Plea of Guilty 30The offences occurred in February 2010. The Court Attendance Notice created on 14 July 2010. Pleas were entered on the day appointed for the committal hearing, that is, 14 July 2011, the pleas having been so notified in writing to the Registry on the previous day. There was no offer by the Defence to plead to lesser charges well beforehand. It follows that the present pleas were not entered at the first available opportunity (within the contemplation of R v Thomson; R v Houlton [2000] 49 NSWLR 383) but after the forensic advantage afforded by negotiations: see R v Stamboulis [2006] NSWCCA 56. 31By his pleas of guilty, the Offender admits the necessary elements of the crimes plus the necessary mental state for their commission. While the Offender is entitled to some measure of discount for the utilitarian value of the plea, such discount is necessarily limited: see R v Thomson; R v Houlton. See also R v Borkowski [2009] NSWCCA 102 and section 22, Crimes (Sentencing Procedure) Act 1999. In this case, I would allow a discount of 15 per cent for the utilitarian value of the pleas.

Defence Submissions 32I was helpfully provided with a copy of Written Submissions by Mr Gibson who addressed me most carefully on each of the points raised. It is not necessary for me to rehearse those submissions in great detail. In response to my mention of sleep deprivation, Mr Gibson took me to the recorded interview where the Offender said he had had about 5 to 6 hours sleep in the 14 hour journey. I agreed with Mr Gibson that the negligence in this case is at the lower end of the scale. I have earlier expressed my view as to the timing of the pleas and their utilitarian value. It is hard to find fault with Mr Gibson's submission that the Court should regard this tragedy as being brought about by a "conspiracy of events" or a "confluence of facts". These, he said, were a combination of the animal, the crest of the hill (particularly as depicted in the scale plan) and the approaching (or closing) speed of the vehicles. There was, in effect, no chance for anyone to do anything to avoid the inevitable collision. 33I accept the Offender is remorseful and has suffered emotionally and physically as a result of his conduct. I accept he made no attempt to avoid responsibility. The report of Doctor Forrester was extremely helpful in this difficult exercise. She noted the Offender's significant difficulty sleeping, flashbacks of the collision, lowered mood and increased anxiety and a sense of guilt particularly in relation to what the families of the Deceased might be going through. She opines his symptoms are consistent with a diagnosis of Post-Traumatic Stress Disorder. 34Importantly, Doctor Forrester says the Offender is in the low category of risk and need in relation to future re-offending. For reasons set out, she cautions against the imposition of a full-time custodial disposition. Mr Gibson echoes her prospects of rehabilitation, which he describes as excellent. Mr Gibson says the Offender is a unique individual. For one so young he has taken on the responsibility of two residential properties for which he saved the deposits and services the mortgages. 35Mr Gibson stressed the good character of the Offender. He tendered testimonial materials from:

• Very Reverend Father Spirkoski;
• Father P.J. Rankin;
• Mr Andrew Pain;
• Mr Battista Mercuri, the father of Alana Mercuri;
• Mr Hugh Tighe. 36All have been unstinting in their praise of the Offender as a mature young man and hands-on contributor to his community. They are people who have known the Offender and his family well over many years and are in a position to provide a level-headed, unbiased assessment of the Offender and his qualities. Taken together they are impressive.

Crown Submissions 37Mr Hanshaw reminded the Court of the penalties provided by the Parliament and stressed the objective seriousness of the offences. The negligent act, he said, was in swerving into the north-bound lane. He did not take issue with Mr Gibson that the negligence was at the lower end of the scale of offending. Each Counsel referred me to Bonsu - Mr Gibson seeking to distinguish the case on its facts and Mr Hanshaw relying on the apparent similarities. He avised the Court that a Community-based Order (or Community Service Order) cannot be transferrred inter-State. Mr Gibson submitted that it would be unfair to deprive the Offender of a non-custodial option through no fault of his own. That is true, but only if a non-custodial penalty was appropriate.

Matters of General Principle 38This case calls for a proper consideration of sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. I do not propose to rehearse the relevant provisions for present purposes. It is my view that no penalty other than imprisonment is warranted because of the objective seriousness of the charges: see also Bonsu . Having concluded that custodial sentences are the only appropriate sentences, I then turn to consider whether they should be suspended: see R v Zamagias [2002] NSWCCA 17 per Howie J at [32]; Barlow v R [2008] NSWCCA 96. I am not persuaded that any sentences should be suspended. 39The issue arises as to whether any sentences imposed in respect of the offences with which I am now dealing should be served cumulatively. In Vaovasa v R [2007] NSWCCA 253 at [15] Howie J said: It has been made clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved. 40His Honour referred to the decision in Cahyadi v R (2007) 168 A Crim R 41, and continued at [16]: This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. 41In response to a submission that this was simply one ongoing episode of criminality, and accordingly, any sentences imposed should be wholly concurrent, I refer to the judgment of Howie J (Gyles JA, Fullterton J agreeing) in R v Merrin [2007] NSWCCA 255 at [36]: This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in R v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle. 42The issue has arisen repeatedly in driving cases causing death where more than one victim was injured or killed. In R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328, Hunt AJA at [23] explained the approach of sentencing for a single action aggravated by multiple victims: ... separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender. 43Further driving cases where the issue has been discussed include: R v Skrill [2002] NSWCCA 484 at [75]; R v Plumb [2003] NSWCCA 359 at [ 12 ] and cases listed at [ 19 ]; Richards v R [2006] NSWCCA 262. In the latter case it was said at [ 78 ]: "... failure to accumulate those sentences, at least partially, appears to have been a failure to acknowledge the harm done to the individual victims". Many of the cases just cited refer to dangerous driving, however, the principle remains the same for negligent driving causing death. In conformity with authority, I have come to the view that there must be some partial cumulation in sentences to be imposed upon the Offender to address the total criminality involved given the nature and objective seriousness of the offending. 44I turn now to consider the question of "special circumstances". The finding of special circumstances is a discretionary finding of fact (see R v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718. 45Merely because there is present a circumstance which is capable of constituting "special circumstances" does not mean that a sentencing judge is obliged to vary the statutory proportion: R v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: R v Nimmo [2005] NSWCCA 295. 46The issue of special circumstances often arises in circumstances where there are cumulative terms of imprisonment and sentencers should always have regard to the outcome of any such accumulation. Indeed, it is well established that accumulation of sentences can itself constitute special circumstances: R v Simpson (1992) 61 A Crim R 58; Close v R (1992) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356 and R v Ibrahim [2005] NSWCCA 43. However, there does not exist, at common law, a proposition to the effect that accumulation of sentences must automatically give rise to a finding that special circumstances exist: Ibrahim. 47I am prepared to find "special circumstances" due to the age of the Offender; this will be his first time in custody; and the impact of the sentence upon a third party, namely, his family and girlfriend - see Roberts v R [2007] NSWCCA 112 per Rothman J at [61] . 48I also propose that there will, again in conformity with authority, be some cumulation of penalty for the Offender. 49I turn now, and perhaps not before time, to the sentences and associated penalties I am to impose.

Victim Impact Statements 50As part of the Crown submissions, Mr Hanshaw, tendered two Victim Impact Statements pursuant to section 26 of the Crimes (Sentencing Procedure) Act 1999. A Victim Impact Statement is defined as - ... a statement containing particulars of:- (a) in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence; or (b) in the case of a family victim, the impact of the primary victim's death on the members of the primary victim's immediate family. 51Where the crime involves the death of the victim, a victim impact statement by a member of the family of the deceased which deals only with the effect of the death on the family is not relevant to the quantum of the sentence: R v Previtera (1997) 94 A Crim R 76. In R v Bollen , Hunt CJ at CL noted at 529 that victim impact statements recognise the value that the community places on human life. 52Mrs Jeannie Vonthien, the sister of May Edna McDonald, read her Victim Impact Statement. Ms Tracey Jackson, the granddaughter of Ivy Cardwell, read the Victim Impact Statement on behalf of her family. One could not help but be moved by their dignity 53By section 28(1) of the Act, a Court may, if it considers it appropriate to do so (and I do in this case), receive and consider a Victim Impact Statement at any time after it convicts, but before it sentences, an Offender. To that end, in respect of Sequences 4, 5 and 6, the Offender is convicted. I will now proceed to sentence.

Sequence 6 - Negligent Driving cause Grievous Bodily Harm 54The Offender is convicted and ordered to enter into a Good Behaviour Bond under section 9 of the Crimes (Sentencing Procedure) Act 1999 for a period of 12 months. The Bond is conditioned that (1) The Offender is to be of good behaviour and appear before the Court if called upon to do so at any time during the currency of the Bond; and (2) the Offender is to notify the Registrar of this Court of any change of residential address during the currency of the Bond. 55Mr Markovski, I am going to ask you some questions and address you. Do you understand the terms of the Bond? I will record your response in the affirmative. Do you agree to enter the Bond with those conditions? I will record your response in the affirmative. 56I am required by law to tell you that if you disobey any of the conditions of the Bond or commit any offence during the period of the Bond, particularly an offence of a similar type, you will be brought back before the Court which may, depending upon the offending circumstances, revoke the Bond and impose a penalty with more serious consequences. Those could include a period of imprisonment on a full-time basis or by way of an Intensive Corrections Order or a period of time on a Community Service Order, provided you are assessed as suitable for those two alternatives to full-time custody. Is that further understood? I record your response in the affirmative. You will be taken to the Court Office where the obligations under the Bond and the consequences of a failure to comply with it will be further explained so that you are left in no doubt. You will sign and be given a copy of the Bond you have entered before me. 57As a separate Order, you are disqualified from holding any motor vehicle driver's or rider's licence for a period of 12 months, to date from 14 October 2011. 58In imposing the following two sentences, I have considered section 3A of the Crimes (Sentencing Procedure) Act 1999 - see R v MA (2004) 145 A Crim R 434; R v King (2004) 150 A Crim R 409 per McColl JA . I have also considered section 5 of the Act and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. The sentence is not one to be suspended: R v Zamagias at [25]-[26] per Howie J; R v Blundell [2008] NSWCCA 92 per Simpson J .

Sequence 4 - Negligent Driving cause Death - May Edna McDonald 59The Offender is convicted and sentenced to a fixed term of imprisonment of 2 months, commencing on 14 October 2011 and expiring on 13 December 2011. The sentence is for a fixed term because it is subsumed in another sentence to be imposed. 60As a separate Order, the Offender is disqualified from holding any motor vehicle driver's licence or rider's licence for a period of 12 months, to date from 14 October 2011.

Sequence 5 - Negligent Driving cause Death - Ivy Violet Cardwell 61The Offender is convicted and sentenced to an original term of sentence of 1 year. After applying a discount of 15% for the Offender's plea of guilty, the term of sentence is now 10 months and 6 days with a non-parole period of 2 months, commencing on 13 November 2011 and expiring on 12 January 2012. There is a balance of 8 months and 6 days commencing on 13 January 2012 and expiring on 18 September 2012. Pursuant to section 50 I direct the release of the Offender to parole at the end of the non-parole period if otherwise eligible. Pursuant to section 51 I direct as a condition of parole that the offender be subject to supervision by the Probation & Parole Service for such period as that Service deems necessary. 62To avoid doubt, there is a partial cumulation in Sequences 4 and 5. The Offender is to serve a total of 3 months imprisonment, commencing on 14 October 2011 and expiring on 12 January 2012. Thereafter he is released to parole for a period of 8 months and 6 days expiring on 18 September 2012. 63As a separate Order, the Offender is disqualified from holding any motor vehicle driver's or rider's licence for a period of 12 months, to date from 14 October 2012. 64The Court extends its sympathy to the families of the Deceased, Mrs Mary McDonald and Mrs Ivy Cardwell, who were quite blameless in all of this. Should any of them read these Remarks on Sentence, I hope it helps to explain the operation of the law to situations such as this and assists in providing some closure. P.S. Dare SC Magistrate Wagga Wagga Local Court 14 October 2011 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: 19 October 2011