Director of Public Prosecutions (NSW) v Pelletier [2014] NSWLC 9 | Case summary

Local Court of NSW|2014-08-15

REMARKS ON SENTENCE 1The offender is before the Court today for sentencing in relation to an offence of negligent driving occasioning death. This offence is created pursuant to section 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The penalty available at sentence for a first offence of this nature is 18 months imprisonment and a fine of $3,300 or both. 2The offence was committed on 27 February 2012 on the Gore Hill Freeway, Naremburn. Before proceeding further it is pertinent to outline the history of these proceedings. 3The matter first came before the Local Court on 10 October 2012 as what is commonly known as a "back up" charge to the more serious offence of dangerous driving occasioning death. This offence is a strictly indictable offence that cannot be dealt with to finality within the jurisdiction of the Local Court. Both offences moved through the committal process. On 19 September 2013 the offender was committed to stand trial in the District Court in relation to the strictly indictable offence. These proceedings accompanied that charge pursuant to section 166 of the Criminal Procedure Act 1986. 4In May 2014 the charge now before the Court was remitted back to the Local Court by order of Berman DCJ. On 29 May 2014 the Local Court was informed the DPP does not propose to proceed with the charge of dangerous driving occasioning death once the sentencing proceedings in the Local Court are completed. 5The Court record indicates that on that date the court was informed there would be a plea of guilty to the charge of negligent driving occasioning death. It is assumed such an indication had been given before the District Court for such an approach is consistent with remission of the matter back to this jurisdiction and the approach to be taken by the DPP following conclusion of proceedings before me. Consideration of the utilitarian value of the plea for the purpose of sections 21A(3) and 22 of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act) will proceed on that basis.

The facts 6Sentencing will proceed in part on the basis of an agreed statement of facts signed and tendered by both parties. This document is not the only material the Court has been invited to consider. Both the DPP and counsel for the defence tendered a number of documents going to the tragic events of 27 February 2012. Reference to pertinent aspects of other tendered material will be made where appropriate and are informative of the reasons behind the ultimate sentence. 7According to the agreed statement of facts, at about 3.05pm on 27 February 2012 the offender was driving his vehicle in a southerly direction along the Gore Hill Freeway. The vehicle occupied the T2 lane. Ms Laryl Snell, the offender's companion, was seated in the front passenger seat. It is accepted the offender was travelling within or at the prevailing speed limit of 80 kilometres per hour. This equates to 22 metres per second. Ahead in the same lane was a stationary white Daihatsu Tipper Truck, its hazard lights activated. The truck had broken down some time earlier. 8The offender did not see the truck or identify the fact that it was not moving until the very last moment. The offender's vehicle swerved to the right immediately prior to the impact with the rear of the stationary truck. The sudden change in direction brought the front passenger side into contact with the offside rear of the truck causing the death of Ms Snell. 9According to the statement of facts, "There were no tyre marks on the roadway prior to the collision scene; indicating that Mr Pelletier had not braked heavily before the impact to avoid the collision." 10The offender subsequently provided an account to investigating police. This was done through his legal representative. For completeness the offender stated: On the afternoon of Monday 27 February 2012 I was driving my motor vehicle, an Audi Station Wagon registration number [XXXXXX]. My partner, Laryl Annette Snell, was the only passenger and was seated in the front passenger seat. We were travelling from our home at Pearl Beach to Cremorne. I was driving in the transit lane on the Gore Hill Freeway when my motor vehicle collided with the rear of a truck that I believe was stationary in the transit lane. I do not recall seeing any hazard or other lights or any other warnings indicating the presence of the truck. 11The majority of this statement reflects nothing more than a statement of events. It is the last sentence towards which submissions by counsel were directed. Resolving the factual scenario on this point also goes to the basis of the plea entered by the offender as being one "entered on the basis of a failure to keep a proper lookout."1 This is a statement devoid of anything other than an anodyne conclusion of what caused the accident to happen. It is incomplete as to the why and does not address the degree of moral culpability attaching to the manner of driving or contribute significantly to evaluating the level of objective seriousness within the commission of the offence. To resolve these issues more is required. 12Those answers are to be found in two reports tendered by counsel for the offender, one of little or no consequence, one of material assistance. 13The lengthy report from Dr Max Humphreys is tendered as an expert report. It purports to comply with the District Court Bulletin on experts dated 2/10/2002. There is no issue that it does not. The report describes the offender's ocular history, his visual fields prior to the collision, results of a visual examination, potential importance of visual perceptual factors and attempts to draw conclusions as to the influence of the driver's visual problems on the likelihood of the collision. 14Dr Humphreys describes the less than optimum capacity within the offender's eyesight. The Court accepts that for a variety of reasons set out within the body of the report the offender is not blessed with perfect vision. It is problematic whether the limitations on the effectiveness of his vision played a part in this tragedy. The Court notes the offender successfully navigated his way from Pearl Beach on the Central Coast to the scene of the accident without any suggestion of an inability to cognitively cope with the surrounding environment during this journey. 15The Court also notes that at page 7 of Dr Humphreys' report the offender is assessed as eligible for an unrestricted driver's licence. The question to be answered is to what degree do the offender's issues surrounding his visual acuity mitigate the objective seriousness of the offence? In layman's terms does it partially excuse his conduct and thereby ameliorate the assessed seriousness of the offending? It is the view of the Court that it cannot; and for good reason. 16It is the view of the Court that every person issued with a licence to drive assumes the same level of responsibility for public safety and the preservation of human life as the next person. There can be no rational basis for a sliding scale of accountability predicated on the potential impact of a physical impediment. To introduce such a standard would lead to a higher level of expectation from those who have no impediment, whether visual or otherwise, and introduce inordinate difficulty in determining whether one impediment was more intrusive and thus more ameliorating than another to the point of inequality in treatment. The corollary might arguably be that those who know they have an identified impediment would be expected to be more diligent than the ordinary person. Such an approach would not assist this offender. 17The detail in the Optometrist's report is certainly relevant on the question of whether the offender should be issued with a licence but not on the question of the appropriate sentence or degree of culpability for an offence. At its highest it is to be regarded as informative but neutral. 18In any event on the facts as agreed, the inference is that whatever may have been the limiting factors in relation to the offender's visual acuity, he clearly did not see the stationary truck until the very last second(s). At page 10, paragraph 4 of Dr Humphreys' report, he opines: The collision appears to have occurred due to Mr Pelletier either misjudging the distance between his car and the truck or not seeing the stationary truck early enough to avoid the collision or misjudging it to be moving. 19Observations made by others and contained within the report of Jamieson Foley, Consulting Forensic Engineers point overwhelmingly to the second of the three opinions, that is, the offender did not see the stationary truck because he failed to keep a proper lookout. Indeed the defendant's own statement that he could "not recall seeing any hazard or other lights or any other warnings indicting the presence of the truck" is inconsistent with the first and third propositions expounded by Dr Humphreys. This too is the essence of his plea of guilty. The issue in this regard is, for how long did he fail to keep a proper lookout? 20The Jamieson Foley report is tendered as an expert report falling within the same ambit of requirement for this status as the report by Dr Humphreys. The report is informative but in terms of the ultimate opinion, when it comes to its conclusions regarding perception/ reaction times, contradictory. 21The report goes to some length to explain the meaning of "Accommodation/ Perception and Reaction" in relation to the basic steps a driver needs to undertake to react to environmental factors, in this case the stationary truck on the road ahead. It is not necessary to repeat the essence of this concept. The author expresses an opinion at page 24 that the closing speed of the offender's vehicle and the stationary truck in the surrounding circumstances was such that the ambiguity of not expecting a stationary image ahead renders the accident totally explicable. 22Such an opinion is not shared by the Court. The plea and the concession within it together with the weight of other material within the report strongly caution against accepting an opinion that argues against a lower level of culpability. 23Why this is so starts with the final two paragraphs at page 45 of the expert report. This part of the report asserts: The total time consumed for this process varies (ibid). Factors which affect the time consumed for perception/reaction include: alertness of road user; weather conditions; light conditions road users experience in similar circumstances. For almost all road users, the range of times consumed by this process spreads between .75 of one second (in an almost ideal situation) through to about 2.5 seconds for less clear situations. Having quoted this "most common" time range it should be noted there have been experimental incidences where road users have reacted faster than the time range and also slower. 24Within the report are extracts from a number of witnesses, whose veracity and observations are relied on in part to assist in the formation of an opinion. Those extracts are informative as to the circumstances leading up to the accident and the inferences that arise going to the degree of seriousness in the offender's conduct. 25Alison Scotland made her first observation of the stationary truck from a distance she estimated as 50-100 metres whilst travelling behind the offender's vehicle. Robert Jarden, the driver of a bus in front of the offender, saw the vehicle from an estimated 200 metres and changed lanes. His observations are similar to those of Peter Shaw, a passenger on the bus. 26Rodney Menzies saw the stationary truck from an estimated 200 metres away, at a time he was travelling in the lane alongside the offender and Ms Snell. Looking to the left he says he saw the offender and Ms Snell appearing to be in conversation. At the time he thought to himself that they should be changing lanes. An estimated 40-50 metres from the truck he reduced his speed to allow the offender's vehicle to change lanes only to see it remain in its lane until the last second when it swerved to the right towards his lane and hit the truck. 27The Jamieson Foley report takes these observations into account and expresses the view at part 6.2 on page 17: It will be conservatively assumed ... there were no vehicles occupying the left of three lanes for about 200 metres prior to impact. Up until this point it is assumed the shuttle bus driven by Mr Jarden (or some other vehicle) may have been occupying the lane thus blocking the view of Mr Pelletier. 28The overwhelming inference from these observations is that no one else had any identified difficulty seeing the stationary truck some 200 metres ahead. Those travelling in the lane in question changed lanes to cope with the obstruction well in advance of the truck. The observation by Mr Menzies from alongside the offender's vehicle after he detected the truck and from an estimated 200 metres to its rear is that the offender and Ms Snell were observably talking and distracted within themselves by it. 29The reasonable inference is that in the course of engaging in that conversation the offender's attention to the road ahead was distracted. The distraction seems, on the observations of Mr Menzies in particular, to have lasted for almost the entirety of the journey from approximately 200 metres to the rear of the truck until the point of the last second swerve. 30The offender enters his plea on the basis of failing to keep a proper lookout. It is the view of the court for the purpose of sentencing that the degree of negligence established is towards the higher end of responsibility. The Jamieson Foley report does not lend itself to affecting that conclusion. 31The surrounding factors that elevated the duty of care of the offender were the speed at which he was travelling, the presence of other traffic and the fact that vehicles in front of the offender in the same lane as the offender were clearly changing lanes, all attracting a necessity for any reasonable and prudent driver to assess the roadway ahead and around his direction of travel. The offender's moral culpability is high and in the factual context is indicative of an abandonment of responsibility to keep a proper lookout for about 200 metres when travelling at about 80kph in the vicinity of other vehicles. Objectively the serious of the conduct within the commission of the offence attracts considerations of a sentence towards the higher end of the range.

The plea 32The charge before me is one remitted back to the Local Court from the District Court in accordance with section 169 of the Criminal Procedure Act 1986. Counsel for the offender informed the Court a plea of guilty had been entered to this charge before the District Court and was adhered to in this jurisdiction. The submission was made that the plea is an early plea. This submission was disputed by the solicitor representing the DPP. The Court agrees with the DPP that the plea is not an early plea. So much is made obvious by reference to the Principles of General Application set out in R v Borkowski [2009] NSWCCA 102. 33The choice by the offender to delay the plea for reasons unconnected with ultimate guilt will result in a reduction in the discount. Principles 8 and 9 are clear on this point. In my view the utilitarian value of the plea is measured at 15%. An argument that the offender was constrained in entering a plea at an earlier date because of the existence of a more serious charge is unpersuasive. Section 22(1) makes provision for an offender to indicate an intention to plead guilty rather than enter a plea of guilty. The offender could have availed himself of his opportunity but chose not to do so.

Victim Impact Statement 34Section 3A(g) provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim and the crime to the community".2 35The DPP tendered a Victim Impact Statement prepared by Stuart Snell, Ms Snell's son. Such a statement is admissible pursuant to section 30 of the Sentencing Act. Out of respect for Mr Snell's privacy the details of the statement will not form part of the reasons for sentence in this matter. I do however acknowledge the heartfelt and deep sense of loss experienced by Mr Snell. 36As I have observed from my own experience and from previous matters, the sudden and unexpected death of a loved one disturbs our perception of the natural order of things in life. A life lost in such tragic circumstances sears our memories with a greater sense of loss not least because it takes away the opportunity to say goodbye and express our gratitude for all that the person has done for us and meant to us. 37Having made this observation it is nonetheless the case that the law does not allow the personal impact of the loss of a life to be taken into account on the quantum of sentence. As Howie J said in R v Barbetta [2008] NSWSC 688 at [18]: Under the law all lives are precious and the death of any person is a harm inflicted on the community in general. 38In addition to the immediate and enduring sense of loss following the death of his mother Mr Snell recounts a subsequent event involving the offender and his late mother's estate. I can make no comment on this circumstance. The issues between Mr Snell and the offender, so I am informed, are sub judice in the Supreme Court.

Subjective factors 39The offender is a 71 year old former legal practitioner. Retired, he describes himself as a pensioner. His letter to the Court dated 23 July 2014 indicates that he and Ms Snell had been "a couple" for some 7 years and had lived together for the 5 years prior to her death. He is a person without a criminal record and is thereby entitled to be regarded as a person of previous good character and one who is unlikely to reoffend. His traffic record is middling. It contains a number of entries for minor traffic matters. It is not sufficiently extensive to attract the sort of considerations expressed in Tsakonas v R [2009] NSWCCA 258 at [37]-[39]. Given the offender's age and antecedents, for the purposes of section 21A(3)(h) there are good prospects of rehabilitation. 40Correspondence from Reverend Watt of the Uniting Church; Dr Hor, the offender's long term medical practitioner; and Dianne Pelletier, his former wife points towards an acceptance that the offender is deeply remorseful for the events of 27 February 2012. I understand that in the mind of Mr Snell this acceptance may be coloured by subsequent events, however for the purpose of section 21A(3) I do find genuine contrition is established. 41The report from Dr Diamond, Consultant Psychiatrist, dated 3 July 2014 referring to his treatment of the offender confirms the deep and abiding impact this tragedy has had on the offender particularly on his mental health. He is described as suffering from adjustment disorder with depression and anxiety arising out of the accident. Dr Diamond's prognosis is that the condition is likely to remain and will not resolve easily or quickly. It is reasonable to observe that outside any penalty this Court imposes, the offender will continue to endure the consequences of knowing that it was he who is responsible for the death of another person. The consequences are self-inflicted, however this does not make them any less real. 42Outside these factors I have already referred to the fact of the offender's plea of guilty. On balance he is unlikely to reoffend.

The sentence 43Sentencing for an offence that is the product of tragedy arising out of an everyday and otherwise lawful activity is one of the most difficult tasks in which a Court may become engaged. The collective psyche of the community at large is not easily reconciled to the need for punishment attaching to negligence through the experience of failing to keep a proper lookout. This is because it is likely that everyone who drives a motor vehicle has been at one time or another guilty of this act of omission but fortunately with little or no consequence. The concept in judging tragedy in these circumstances will invariably be tempered at first blush by the aphorism "there but for the Grace of God go I". This form of self-evaluation is not something that sits comfortably with the criminal law. Courts are required to apply the law, not distort it. 44Some everyday courses of conduct are subject to a criminal sanction when unacceptable consequences flow from a failure to achieve an acceptable standard of performance. This offence is one of them. 45Parliament has legislated on behalf of the community in this area and over the years has periodically increased the maximum penalties for this offence in pursuit of general deterrence. As will be observed later in these remarks, the express will of the Parliament is not to be ignored. 46Counsel for the offender submitted the appropriate penalty for this matter was a bond under section 9 of the Sentencing Act. It was also submitted that for reasons to do with his place of residence and need to attend a variety of medical and related practitioners the statutory period of disqualification that flows from conviction be reduced significantly. 47In support of submissions on the offender's subjective circumstances counsel referred the Court to the decisions of R v Dhanhoa [2000] NSWCCA 257 and Hughes v R [2008] NSWCCA 48. 48The decision in Dhanhoa relates to a crown appeal against inadequacy of sentence. I think it safe to observe from reading the lead judgment of Priestley JA that had it not been for the double jeopardy principles his Honour would have been inclined to increase the sentence at first instance. The purpose of the decision however seems to be that it is open to the sentencing judge to take into account psychiatric evidence regarding the impact of the offence on the offender by reason of his relationship to the deceased such that it may lead to the exercise of discretion to impose a lesser sentence. 49The decision in Hughes was a severity appeal against the sentence of imprisonment imposed by the Judge at first instance. The focus of submissions from this decision relate to the consequences of remorse where the victim is a person with whom the offender was in a relationship. The court cited the observations of Lord Lane in R v Boswell and Other Appeals (1984) 3 All ER 353 at 357: Sometimes the effect on the defendant if he is genuinely remorseful, if he is genuinely shocked [may be]... a possible mitigating factor. The court held at [25] that: Although his Honour referred to the despair and depression that the applicant experienced at the loss of Ms Cook, and the consequent genuineness of his remorse, it is difficult to conclude that this significant element of mitigation ... has been appropriately reflected [in the sentence]. 50I have already referred to the impact of the reality that the offender is solely responsible for the death of Ms Snell on his mental health. I accept the observations in the foregoing cases require me at law to take that factor into account, with other factors, in mitigation of penalty. This is not to say that such a circumstance mitigates the sentence to such an extent that it fails to adequately reflect the seriousness of the offending. It is however to be applied with other factors in the reasoning process applied in determining the appropriate sentence. 51In the course of sentencing submissions I raised the decision of Howie J in Bonsu v R [2009] NSWCCA 316 at [19] and [24] in particular. Therein the Court said at [19] 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", and at [24] that "the range of penalties being imposed, at least in the Local Court, is inadequate". 52Counsel for the offender submitted that his Honour's words are obiter and not binding on the Court. The response of this Court is, and must be, that when the Court of Criminal Appeal expresses a view in relation to consistency on sentencing and identifies a lack of appropriateness in the penalties being imposed, it behoves an inferior court to take heed lest it creates an environment whereby a Crown appeal predicated on inadequacy of sentence becomes an inevitable consequence. 53Further to the observations in Bonsu the decision in R v Way (2004) 60 NSWLR 168 at [52] remains as a reminder of the need for a Court to recognize the intention of the legislature when there are increases in penalties (citations omitted): Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognise and reflect that intention when sentencing offenders for offences after such amendments are made. 54Although the maximum penalty for this category of offence was increased in 1998 to 18 months the observation remains pertinent. 55In the context of these proceedings once it is established that the degree of negligence and thereby the moral culpability of the offending is towards the higher range of objective seriousness, then irrespective of the plea and the offender's subjective circumstances that go to mitigate the penalty, the observations of the court in Bonsu and Way bring the court to the point of considering whether the threshold set out in section 5 of the Sentencing Act has been crossed such that "having considered all the possible alternatives... no other penalty other than imprisonment is appropriate." 56As Howie J said further in Bonsu - 19 ... I have difficulty in understanding how ... [section] 9 of the Crimes (Sentencing Procedure) Act 1999 can be used for such an offence.... ... 24 Nothing that I say in this matter and the penalty that 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. 57I turn to the observations of the Court in R v Zamagias [2002] NSWCCA 17 in relation to the steps that are to be taken. At [23] the Court said: ... when sentencing an offender to a term of imprisonment under that Act, a court is required to undertake a number of steps before finally determining the appropriate sentence. Each step requires the court to consider the objective gravity of the offence balanced against the subjective circumstances of the offender, but it is the first of those considerations that will principally determine which of the available sentencing alternatives the court should adopt. This is because at the end of the day the sentence must be commensurate with the seriousness of the crime: R v Geddes (1936) 36 SR(NSW) 554; R v Rushby [1977] 1 NSWLR 594. 58In my view the purposes of sentencing set out in section 3A of the Sentencing Act, particularly in relation to the need for general deterrence and denunciation point towards a sentence of imprisonment. This matter is markedly different from a case of momentary inattention of the type considered in R v Pyritz (1998) 29 MVR 90 and R v Foster (2001) 33 MVR 565 where the moral culpability was less because of the short period of inattention and thus warranted a sentence other than one of condign punishment. The conduct in this matter is far more serious. In my view the threshold under section 5 is crossed. 59Again, in line with the decision of Zamagias it is necessary to determine the length of the sentence and the manner in which it is to be served. 60The maximum available sentence for this offence is a term of 18 months imprisonment. The appropriate sentence for this offence having determined it is in the higher range of objective seriousness is a sentence of 14 months. After the application of the discount of 15% for the utilitarian value of the plea the sentence will be one of 12 months. 61Once again in line with the decision in Zamagias I turn to the manner in which the sentence is to be served. 62The Sentencing Act provides four alternative forms in which a sentence of imprisonment may be served. 63The least onerous is by way of a suspended sentence pursuant to section 12 of the Act. I am not of the view a suspended sentence adequately meets the principle of general deterrence which, in matters of this nature, is the paramount pillar of consideration. The community must be made aware that the preservation of human life and maintenance of public safety in the use of a motor vehicle is of absolute importance. When the necessary standard is not achieved the consequences as in this case are tragic and irreversible. As was said in R v Taylor [2000] NSWCCA 442 at [49], "a suspended sentence... provides very little, if anything, by way of general deterrence." 64The offender's physical and mental health issues render him unlikely to be assessed as suitable for an Intensive Correction Order given the community service work component. The reports from both Dr Diamond and Dr Hor establish underlying medical conditions consistent with ageing and mental health problems arising from an acute grief reaction and shock related to the accident. Although an Intensive Correction Order is a sentence of imprisonment under the Act, its strictures do not lend themselves to consideration because of the offender's medical condition. In any event such a sentence would not adequately address the need in this case for general deterrence and denunciation. 65The offender's prior good character, plea of guilty, genuineness of remorse, mitigation of the kind accepted as appropriate in the decisions of Dhanhoa and Hughes and prospect of rehabilitation in combination are sufficient to persuade me that a sentence of full time imprisonment imposed under section 5 of the Act may be mitigated to the extent of not being appropriate. Those factors together with the need to manage his physiological and mental health issues on a long term basis point towards an assessment of suitability to serve the sentence about to be imposed by way of Home Detention under section 6 of the Act. 66The formal sentence of the Court is as follows: THE DEFENDANT IS CONVICTED AND SENTENCED TO A NON PAROLE PERIOD OF IMPRISONMENT OF NINE MONTHS WITH AN ADDITIONAL PERIOD OF THREE MONTHS TO BE SERVED ON PAROLE. THE TOTAL SENTENCE OF IMPRISONMENT IS ONE OF TWELVE MONTHS. THE PROCEEDINGS WILL BE ADJOURNED UNTIL 9 OCTOBER 2014. DURING THE PERIOD OF THE ADJOURNMENT THE OFFENDER IS TO BE ASSESSED AS TO HIS SUITABILITY FOR HOME DETENTION.

Licence disqualification 67It was put to the Court that the Court should exercise its discretion to reduce the automatic period of disqualification. The automatic period is 3 years from the date of conviction. Counsel argued that a reduction would ameliorate the difficulties the offender would otherwise have attending medical practitioners because of his residential location. This may be so, however I am not persuaded in this matter that the Court should exercise its discretion to intervene and reduce the period of disqualification below the automatic period. The offender is disqualified from holding or obtaining a licence for the automatic period of 3 years. That period is to commence forthwith. The offender is to surrender his licence to the Court. Judge Graeme Henson Chief Magistrate 15 August 2014

Footnotes 1 Agreed statement of facts - final sentence 2 Judicial Commission of NSW, Sentencing Bench Book at [12-810]

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: 18 August 2014

Director of Public Prosecutions (NSW) v Pelletier

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