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1. Mr Jake Barrett (the offender) pleaded guilty in the Supreme Court to the following offences: (a) Culpable driving causing death (CC2021/10182), contrary to s 29(2) of the Crimes Act 1900 (ACT) (Crimes Act), punishable by 14 years’ imprisonment; and (b) Culpable driving causing grievous bodily harm (CC2021/10183), contrary to s 29(4) of the Crimes Act, punishable by 10 years’ imprisonment.

2. While driving a truck, the offender drove through an intersection on the Barton Highway from the leftmost northbound lane. The offender entered the intersection contrary to the red traffic signal. In doing so, the offender collided with ‘vehicle 1’, driven by Mr Alistair Urquhart, on the driver’s side of the vehicle at approximately 79km per hour. The force of this collision pushed vehicle 1 into the driver’s side of ‘vehicle 2’, driven by Mr Scott Wood. The impact of the collision resulted in the death of Mr Urquhart and caused serious injuries to Mr Wood.

3. At the outset, the tragedy of what happened, and the difficulty of this sentencing exercise must be acknowledged. This case involves the death of an innocent person and grievous bodily harm to another innocent person. There are irreversible consequences that cannot be resolved through the imposition of a sentence by any Court. No sentence a Court can impose can resolve this tragedy or change what happened. The sentence the Court imposes cannot hope to reflect the value of human life. The dignity of human life cannot be measured in that way. I must judge the offender in accordance with the law and the principles of sentence that a judge must apply: See R v Livas (No 2) [2020] ACTSC 116 (Livas) at [3]. See also R v Richardson [2016] ACTSC 133 (Richardson) at [5]; R v Creighton (Supreme Court of the Australian Capital Territory, Refshauge J, 28 October 2010) (Creighton).

4. The pleas of guilty to the offences noted above, together with the facts I will detail, illustrates the offender’s acceptance that his conduct involved failing, “unjustifiably and to a gross degree, to observe the standard of care that a reasonable person would have observed in all the circumstances of the case”: s 29(7) of the Crimes Act.

Facts

5. The facts were agreed and set out in a Statement of Facts which was tendered by the prosecution. The agreed facts detail the circumstances of the collision which led to the charges for which the offender has pleaded guilty.

Background

6. The offender started his shift as a tow truck driver with Quickeze Towing (“Quickeze”) at about 7:00am on 15 September 2021.

7. The offender had been employed by Quickeze since January 2021, but had been driving trucks for at least two years prior to September 2021. The offender held a National Heavy Vehicle probationary licence.

8. For his shift, the offender was allocated an Iveco Eurocargo 225E28 tow truck with a flatbed tilt tray (the “Iveco”). The Iveco, unburdened, weighed approximately 10,100 kilograms, and had a Gross Vehicle Mass of 22,500 kilograms.

9. The offender’s first job for the day involved transporting one vehicle from Hertz in Pialligo, ACT to Capital Smart in Fyshwick, ACT, and transporting another vehicle back to Pialligo. The offender returned to Fyshwick to refuel, and then drove the Iveco to Hoskintown, NSW to pick up a Hitachi heavy excavator.

10. The offender set out from Hoskintown at around 10:26am. At about 11:14am, he turned left off Northbourne Avenue in the ACT onto the Barton Highway in the northbound lane.

11. That section of the Barton Highway is a four-lane, two-way stretch of road with a posted speed limit of 80km per hour.

12. On the approach to the Gungahlin Drive overpass, the northbound stretch of Barton Highway expands into three lanes. The left lane is an exit lane, which directs the driver in a loop onto Gungahlin Drive. The middle (now left) and right lanes continue on Barton Highway. Approximately a further 100 metres to the northwest, those lanes intersect with a Gungahlin Drive offramp. That intersection is controlled by a set of traffic control devices.

13. The Gungahlin Drive offramp is a two-lane, one-way road. Motorists travelling east on the offramp are required, in accordance with the relevant traffic signals, to turn right onto the southbound lanes of Barton Highway. The traffic control devices that control the intersection are traffic lights (see Figure 1). Figure 1: Mosaic drone image of Barton Highway and the Gungahlin Drive offramp (Extracted from Prosecution Tender Bundle)

The collision – 15 September 2021

14. The Iveco was fitted with a global positioning system (GPS). The GPS data recorded that at about 11:17am, while travelling on the Barton Highway, the Iveco reached a speed of 79km per hour. At about 11:17am, Mr Wood was waiting at a red traffic signal in the left lane of the Gungahlin Drive offramp, waiting to turn into the intersection into the southbound lane of Barton Highway. Mr Wood was driving a dark grey Toyota Landcruiser. As he was waiting, a maroon Ford Falcon (the “Falcon”) stopped parallel to Mr Wood’s Landcruiser in the right lane. The Falcon was driven by Mr Urquhart. The light turned green to the Gungahlin Drive offramp, and Mr Urquhart drove into the intersection. Mr Wood followed approximately one half of a car length behind Mr Urquhart.

15. At that time, the Iveco driven by the offender entered the intersection contrary to the red traffic signal. The Iveco collided with the Falcon on the driver’s side at approximately 79km per hour. The force of that collision pushed the Falcon into the driver’s side of the Landcruiser.

16. The Iveco continued to travel at an angle after making contact with the Falcon, towards the median strip. The Iveco tipped and rolled onto its left side. It came to a stop on the median strip, lying perpendicular to the road. The excavator fell off the tray. The Falcon came to a rest on the median strip perpendicular to the Iveco. The rear and driver’s side of the Falcon sustained significant damage.

17. At some point during the collision, Mr Urquhart was ejected from the Falcon. Both the Ford and the Iveco were located approximately 47 metres north of the point of collision.

Aftermath of the collision

18. Once Mr Wood’s vehicle came to a stop, he took off his seatbelt and tried to open the driver’s door of his Landcruiser. When the door would not open, he attempted to climb over the centre console. However, his injuries prevented him from exiting the vehicle. He thereafter attracted the attention of persons who had gathered at the scene of the collision by activating his horn and flashing the headlights of the Landcruiser.

19. When emergency services arrived, they were required to cut the driver’s door off the Landcruiser to free Mr Wood. This process took approximately 45 minutes to one hour.

20. Several other persons tended to Mr Urquhart, who was reported to be unresponsive. Mr Urquhart was later pronounced life extinct at the scene by a doctor.

21. Just before midday, the offender participated in a Record of Interview at the scene of the collision. The Record of Interview was audio-visually recorded on Senior Constable Smorhun’s body worn camera.

22. During the interview, the offender made admissions to being the driver of the Iveco. He also made the following statements: (a) “As I’ve come under the [Gungahlin Drive] bridge, an alarm has sounded in the truck. I’ve glanced down to do it. As I’ve glanced down, the light must’ve turned orange here and, as I’ve looked back up, the cars have pulled out in front of me and I had nowhere to go. And I hit the Falcon and he’s pushed into the Landcruiser”; (b) When asked about the alarm, the offender said, “something on the dash beeped … like, a warning buzzer came on or something”; (c) When asked if he knew if there were any regular alarms that go off in the Iveco, the offender said, “ah, it’s not my usual truck that I drive. … I usually drive a different truck … But coming back from lockdown – this is my first day back on from lockdown … They’ve put me in a different truck. So, um, the engine light – um, I know that the engine light in that truck is always on, but … it doesn’t usually beep or anything, you know what I mean?”; (d) Later, when asked how many times he had driven the Iveco, the offender said, “Um, I wouldn’t know the exact number, but … Yeah, I wouldn’t be able to tell you an – an accurate estimation, yeah, but I’ve driven it a few times”. He further said, “probably more than five [times]. Maybe more than ten. Maybe twenty times … you know what I mean, but not regularly, you know what I mean?”; (e) He loaded the excavator onto the Iveco. The excavator was very securely loaded, and he prides himself on being good at “loading stuff up”; and (f) He “smoked a bit of weed on Sunday … morning … like – but not since then”.

23. The offender also made three separate additional statements to Senior Constable Broomhall, to Constable Corujo, and to Constables Pemberton and Mann while being transported to the Canberra Hospital. In the latter case, the offender stated, “[t]his is my first day back to work from lockdown and my boss had given me a different truck that I’m not used to. While I was driving an alarm sound went off in the cabin and I was trying to figure out where it was coming from. When I looked up the light was green. I continued to look for the issue and the light must have changed to orange. I must have gone through an orange light. … I’m so sorry that I’m the reason that this has happened, I feel horrible that all of the resources have to be used because of me. I just killed a guy. I just want to make it better but I don’t know how to make it better. A guy is dead because of me. I’m so sorry”.

24. While still at the scene of the collision, the offender spoke to Constable Corujo which was recorded on Constable Corujo’s body worn camera. During that footage, the offender made admissions to glancing down and glancing back up while passing under the Gungahlin Drive overpass. The offender went on to say that the lights for the Falcon and the Landcruiser must have turned green, and his light must have turned yellow as he glanced down. The offender said that, as he glanced down, he “wasn’t trying to slow down or anything”.

25. Safety and Compliance Officers of the National Heavy Vehicle Regulator told police that both air diaphragm chambers on the rear axle of the Iveco were ruptured, and that this was a longstanding fault. This would have led to a continuous amber or red warning on the dashboard, but “no aural warning”.

26. The Iveco and the excavator were seized and transported to the Australian Federal Police Majura Complex’s secure vehicle storage yard. A mechanical inspection of the Iveco was conducted.

27. The Safety and Compliance Officer concluded their report by noting that the Iveco “has been well maintained and would appear to have been in a roadworthy condition prior to collision. … I did not identify any mechanical issues that could have contributed towards the collision”.

28. The expert evidence is that there was no mechanical reason for an alarm to sound, but due to the condition of the truck following the collision, it cannot be said with certainty that no alarm sounded as described by the offender.

29. After participating in the Record of Interview at the scene of the collision, the offender was taken into custody and transported to the Canberra Hospital for the purposes of a blood test.

30. Testing conducted on the blood sample that was taken from the offender following the collision revealed the presence of delta-9-tetrahydrocannabinol (THC) at a concentration of 9 nanograms per millilitre.

The offender’s actions before the collision and the basis of liability

31. The offender was “eyes down” without his eyes on the road for a period of between 8 and 11 seconds in advance of the collision. The offender did not see the light at the intersection change from green to yellow or yellow to red. He did not observe the victims’ vehicles entering into the intersection. He saw the victims’ vehicles immediately before the collision once they were already in the intersection.

32. The significant period of inattention resulted in the offender’s failure to keep a proper lookout or drive to conditions in circumstances where he was driving a loaded heavy vehicle, which was nearing its load capacity, along a 80km per hour limited major arterial road in a reasonably built up area, failed to slow for the intersection, failed to stop on the red signal and drove through the red light signal at approximately 79km per hour. There was no or very minimal braking immediately before the collision.

Mr Urquhart’s cause of death

33. An autopsy of Mr Urquhart’s body was performed. Mr Urquhart died as a consequence of the injuries he sustained in the collision.

Mr Wood’s injuries

34. After Mr Wood was extracted from the Landcruiser, he was taken to the Canberra Hospital. He remained there until discharged on 3 October 2021. Mr Wood also required admission to the Intensive Care Unit (ICU) at the Canberra Hospital from 15- 20 October 2021.

35. Mr Wood sustained serious injuries, including the following: (a) Chest and lung injuries; (b) Fractures of lumbar vertebrae 2, 3 and 4 (L2, L3 and L4); (c) Right-sided pelvic injuries; and (d) Right-sided shoulder injuries.

36. Relevantly, Mr Wood received the following treatment: (a) A surgical procedure under general anaesthetic of “right sided video assisted thoracoscopy, right mini thoracotomy, decortication and drain insertion”; (b) Non-operative management to treat his shoulder fractures on the right side by the use of restricting movement; and (c) Close monitoring and immobilisation of pelvic fractures, lumbar vertebral fractures and shoulder fractures.

37. A medical report opined that Mr Wood may experience ongoing consequences as a result of the injuries sustained. These include permanent scarring, ongoing pain, reduced mobility of his right shoulder, an increased risk of arthritis in his shoulder, psychological effects, or further surgery under a general anaesthetic.

38. It is agreed that the injuries sustained by Mr Wood were as a result of the collision and that they constitute grievous bodily harm. Offender’s injuries

39. As a consequence of the collision the offender sustained lacerations and abrasions.

Victim Impact

40. Sections 33(1)(e) and (f) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) provide for consideration of resultant injury, loss and damage, as well as the effect on victims and their families.

41. Two Victim Impact Statements were tendered. They included a Victim Impact Statement of the sister of Mr Urquhart and the victim, Mr Wood. It was conceded by counsel for the offender that both statements should be afforded appropriate weight and taken into account by the Court.

42. The Victim Impact Statement of Mr Urquhart’s sister speaks to the impact of the loss of her younger brother. Her eloquent and dignified Victim Impact Statement includes the following: The loss of my little brother, Alistair, has left me devastated, and I am still trying to recover some semblance of happiness as I type this statement. That said, I do not believe that Mr Barrett set out to kill and injure people with his truck that day, so that should be taken into account. I am very pleased that Mr Barrett has decided to plead guilty and, thereby, saved everyone the additional trauma of a court case. Mr Barrett and I also spoke briefly last time he was in court and he apologised to me at that time, so he and I have made our peace. I would like to thank everyone who tried to help Alistair and the other gentleman injured in the accident, and all of those who have assisted with this difficult and lengthy process. Thank you for being such amazing human beings. Finally, I send my very best wishes to all involved, along with the sincere hope that everyone heals fully and that, having been touched by this experience, we all drive much more carefully going forward. Sending lots of love to you all …

43. The Victim Impact Statement of Mr Wood provides insight into the life-altering impacts of this offending, as the surviving victim of the collision. Mr Wood explains, with great dignity, how the collision has impacted both himself and his family. Mr Wood has detailed to this Court the difficulty in living with gratitude for surviving the collision, while also dealing with the profound ways that his life has changed as a result of the offence.

44. The Victim Impact Statement of Mr Wood included the following: I have found it difficult to know where to start in drafting my Victim Impact Statement. It has been nearly 2 years since the accident and it seems clear that I will live with the [effects] of this for many years to come and for several parts the impact will be lifelong. … The only way that I can think to do this is to provide some sort of comparison between my life, activities and relationships I had prior to the accident and what most days are like for me now. Prior to the accident, I lived my life with no restrictions on my family, social or professional life and considered myself to be a fit, healthy and active person. I went to the gym at least three times a week, I rode mountain bike at least 3 times a week and would travel to the coast on the weekends to go surfing for a few hours if time permitted. … My family and I socialised often, either going out to dinner or seeing our friends. We frequently travelled together, extending our mountain biking to other countries. I worked full time for the Federal Government and had a successful career with several agencies. Since the accident, my life and that of my family has been profoundly affected. Immediately, after the accident I spent some time in the car by myself… My car door wouldn't open and I thought that I should jump over the centre console and get out the passenger side. At this point it become clear that I was seriously injured as I couldn't move my legs or shift my weight to get out. Breathing become very difficult and I was convinced that I was dying… I remember the fire department cutting me out of the car and during this time I experienced pain that I didn't think was possible. I couldn't [breathe] or move and I sat there helplessly waiting for someone to help. When I woke in hospital I was disoriented and was taken to the Intensive Care Unit, where I received treatment for 6 days. During my time in ICU I had to have both my lungs drained. To do this I was rolled onto my side, however, as I had somewhere in the order of 20 rib fractures this was unbearably painful and I remember screaming uncontrollably and pleading for it to stop. My wife had to be removed from the room as the experience was overwhelming. I received somewhere between 27 and 30 fractures overall (shoulder, pelvis, sacrum, spine and ribs) and significant trauma to both my lungs. In hospital I was unable to even sit up without assistance and experienced constant pain. With these injuries I required assistance for everything I needed to do. … After being discharged from hospital, I spent about another 3 months totally dependent on my wife for support. I spent virtually all day in a reclining chair as I couldn't sit upright or lie flat. I required a walking frame to move about and I slept in the lounge room for 3 months. I remember my wife frequently waking me up in the middle of the night to make sure I was still alive and ok. I've been living with constant pain in my back, neck and shoulder since the accident and I haven't had a single day without some form strong pain medication. I'm unable to sit, stand or lie for more than about 20 minutes without either strong medication or overwhelming discomfort. The pain has seriously affected my sleep and I wake up after a few hours in pain. I have to either take additional pain relief or go through a series of exercises and stretching to try to relieve the pain. This occurs most nights and at times I cannot sleep at all and am still awake when my family is getting up. I haven't had a full nights sleep since the accident. … [T]he impact to my right side was so significant that my ribs and abdomen were pushed out of shape. I recall the distress my son experienced in seeing me like this and trying desperately to be strong for me. These moments will never leave me. At times the pain I have experienced at home has been so strong that I have been incoherent and screaming on the floor, leaving my wife and my son totally helpless to provide any sort of help or comfort. The impact that this has had on loved ones cannot be overstated. I am unable to undertake some simple domestic duties and rely on others to help me. Since the accident, my injuries have prevented my family and I participating in lots of activities. It's hard to watch our family and friends continue with their lives and not being able to do so ourselves. … Some days I require help to get out of bed or move around despite the pain relief. Sometimes the pain is so intense that I cannot move and spend large periods of time on the floor desperately trying to find some relief. This can last for days and prevents me from doing anything. I have lost any enduring sense of safety or comfort and I avoid leaving the house and driving a car if I can. Frequently I require sedatives to go outside, interact in groups or travel. ...I know that I was extremely lucky and the timing of my arrival at the intersection before the other man contributed significantly to me surviving and him losing his life. I frequently recall the circumstances of this and find it extremely distressing to know that my survival was to a large extent just luck. I think frequently about the other man and his family and have distressing feelings that I survived because I arrived first. While I'm very grateful to be alive and be with my family, my life has been severely impacted and it feels so very unfair. I hate that I'm not able to live the way I want to and resent that the activities that I love I can no longer undertake. The lack of activity and the inability to work has left me without a sense of purpose or direction. Chronic pain has affected my appetite, motivation and interest in the things that I used to enjoy and don't look forward to anything. I'm unable to concentrate and at times I experience headaches and ringing in my ears when reading. Its distressing to think what my life will be like in the future and how much support I will need or what I will be able to participate in. Before finishing I want to add that I don't believe that Mr Barrett acted with any malice or intent to hurt me. I frequently feel very angry and upset at the situation, however, this isn't always directed at Mr Barrett and I recognise that he will carry the [effects] of this for a lifetime as well and I don’t want to add to this anguish.

45. The Victim Impact Statements are both eloquent and dignified. The Victim Impact Statements outline the long-term consequences of the collision. I note in this context that I also recognise the importance of ensuring that the victim’s attitude toward the offending does not interfere with a proper exercise of the sentencing discretion. In this case there is evidence before me of great dignity and humanity that the victims have expressed in relation to the offending. This is in evidence before me, and I acknowledge the Victim Impact Statement of Mr Urquhart’s sister which stated that she and the offender have “made their peace”. I also acknowledge the Victim Impact Statement of Mr Wood in his comments reflecting that he does not want to add to the offender’s “anguish”. However, I must exercise proper sentencing discretion without permitting attitudes of forgiveness (or as it arises in some cases, vengeance) to interfere with this discretion: R v Glen (Unreported, New South Wales Court of Criminal Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994). See also R v Palu [2002] NSWCCA 381 at [37].

Gravity of offending and moral culpability

46. The main question at issue under this heading is whether this is a case of momentary inattention.

47. As discussed by Hamill J in R v Eaton [2023] NSWCCA 125, the language of the guideline judgment R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 (‘Whyte’) in the context of more recent case law is somewhat distracting. Spigelman CJ (as he then was) referred to the guideline judgment of Whyte being related to an assessment of “moral culpability” and referred to features of a “recurring case” most of which were objective factors and aggravating factors that may arise as referred to by Hamill J. The aggravating factors are objective factors. These matters were said to bear upon moral culpability. Hamill J accepted that the references to “moral culpability” in Whyte are a reference to the objective criminality of the offending. Whyte was decided more than 20 years ago, and the terms’ objective gravity and moral culpability have come to be discussed as different but related factors in instinctive synthesis. This can lead to some legal confusion when discussing the guideline judgment.

48. In The Queen v Kilic [2016] HCA 48; 259 CLR 256 (Kilic), the High Court stated at [19]: [A] sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum” that extends from the least serious instances of the offence to the worst category, properly so called.

49. In R v Toumo’ua [2019] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [24], the Court of Appeal stated: [R]eferences to low-range, mid-range and high-range objective seriousness are unlikely to be helpful in this jurisdiction. It is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case.

50. It is trite to observe that in assessing the objective seriousness for an offence a sentencing judge must give reasons. A recital of the facts and submissions of the parties is insufficient: The Queen v Miller [2019] ACTCA 25; 279 A Crim R 232; Simpson v The Queen [2019] NSWCCA 137. See also Forster-Jones v The Queen [2020] ACTCA 31 (Forster-Jones) at [29]-[30]. The offence of culpable driving causing death or grievous bodily harm

51. The ACT Court of Appeal has held that the NSW guideline sentencing judgment in Whyte (for the equivalent offence in NSW of dangerous driving causing death) is of persuasive authority: see Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 (Monfries); R v Kekalainen [2014] ACTSC 132 (Kekalainen) at [28]; R v Loeschnauer [2022] ACTSC 30 at [27]. Both counsel properly agreed with this proposition.

52. The guideline judgment of Whyte stated at [214] that, in relation to sentencing for dangerous driving causing death, “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement”. The Court observed, earlier in its judgment at [205], that “in determining the appropriateness of full-time custody and the length thereof, the sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence”.

53. The Court observed at [204] that a “typical case” will involve: (a) A young offender. (b) Good character with no or limited prior convictions. (c) Death or permanent injury to a single person. (d) The victim is a stranger. (e) No or limited injury to the driver or the driver’s intimates. (f) Genuine remorse. (g) Plea of guilty of limited utilitarian value.

54. The Court went on to list a number of aggravating factors that would inform the assessment of the offender’s moral culpability at [216]-[217]: (a) Extent and nature of the injuries inflicted. (b) Number of people put at risk. (c) Degree of speed. (d) Degree of intoxication or of substance abuse. (e) Erratic or aggressive driving. (f) Competitive driving or showing off. (g) Length of journey during which others were exposed to risk. (h) Ignoring of warnings. (i) Escaping police pursuit. (j) Degree of sleep deprivation. (k) Failing to stop.

55. In Kekalainen, Refshauge J made the following important observations about the great tragedy of culpable driving causing death offences at [21]-[24]: So often the offence is one of great tragedy. The loss of life of a valuable human being is bad enough but often, as in this case, the offender is a person who leads an ordinary sensible law-abiding life. Nevertheless, the offence is a serious one. Indeed, Fox J pointed out R v Palmer (unreported, ACT Supreme Court, Fox J, 14 June 1974) that it is every bit as antisocial and perhaps more antisocial than a lot of other conduct more commonly recognised as criminal. Hunt CJ at CL, quoting R v MacIntyre (1988) 38 A Crim R 135 at 139, said, in R v Slattery (1996) 90 A Crim R 519 at 523: It must be said that this class of offence is one which in many, perhaps even in most cases is committed by persons who are not in any sense members of the criminal class or who even have criminal convictions against them and for that reason the courts need to tread warily in showing leniency for good character to avoid giving the impressions that persons of good character may, by their irresponsible actions at the time, take the lives of others and yet receive lenient treatment. Nevertheless, his Honour referred to what Street CJ had said in Murnin v R (Unreported, New South Wales Court of Criminal Appeal, 16 August 1985): A motor vehicle is a potentially dangerous – indeed lethal – machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The legislature has always placed a premium upon human life and the taking of human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness. These comments remain pertinent, as Fullerton J noted in R v Kutshera (2008) 51 MVR 485 at 492; [39]. In Kennewell v Rand [2006] ACTCA 10 at [42], the Court of Appeal made a similar point when it said: The courts must make it clear to the public generally that it views conduct of this kind seriously. The courts have a duty to ensure that persons who use the highways are not put at risk by persons who would drive like this appellant.

56. Relevantly, in Lutz v JK [2016] ACTSC 200, Murrell CJ stated at [40]: There are no degrees of death. Loss of life is the most serious damage that can be sustained. One cannot distinguish between different offenders based on death.

57. However, her Honour continued: Of course, the position is different with offences where grievous bodily harm is caused. The concept of grievous bodily harm captures many serious and often permanent disabilities, ranging from disabilities that have minimal impact on quality of life to those that have grave impact. The extent and nature of the injuries inflicted will contribute to the determination of an appropriate sentence in relation to grievous bodily harm: R v Whyte at [214].

58. In Pearce v The Queen [2022] NSWCCA 68; 99 MVR 175 the NSW Court of Criminal Appeal held that it would be wrong to approach the assessment of objective seriousness by simply counting the number of aggravating features present.

59. Importantly, professional truck drivers have an obligation to ensure that other road users are safe from the potential damage that their heavy vehicles can cause if involved in a collision. The potential damage that a heavy truck can cause in a collision is significantly greater than that which will typically be caused by a typical passenger car: Livas at [28], [36].

60. In Preston v The Queen [2011] NSWCCA 25; 57 MVR 346 the NSW Court of Criminal Appeal cited with approval the comments made by the sentencing judge at first instance about the professional obligations of commercial truck drivers at [23]-[24]: His Honour was concerned to observe the requirement to impose a sentence that had as a component "general deterrence". His Honour noted that: "... truck driving is a business, it is a vital business which supplies the community with goods ... However, it is not business at all costs. Trucks drive on public roads. The roads are provided by the community. The roads are not closed for the delivery of goods, for the exclusive use of goods. Trucks share the roads with all sorts of vehicles which usually have one thing in common, and that is the vulnerability of that vehicle if it comes into collision with a heavy truck." His Honour said that in a collision between a truck and another vehicle, the physical consequences for the truck driver are often minimal in comparison to the catastrophic consequences for the driver and occupants of the other vehicle. His Honour noted that driving a truck places a very heavy onus on a professional truck driver not only to drive safely, but also to drive in accordance with the road rules … (emphasis added)

61. Relevantly in Morabito v The Queen [2007] NSWCCA 126, the Court accepted, at [53], the following observations of the sentencing judge referring to the “onerous duty” placed on drivers of heavy vehicles when dismissing a sentencing appeal brought by the offender: An onerous duty is cast upon the drivers of heavy vehicles on the highway. The potential for gross harm resulting from even momentary inattention is obvious. When a heavy vehicle travelling at speed, albeit within the legal limit, is involved in a collision common sense and experience dictates that the chances of very significant harm resulting there from are much more likely than if the collision had been between normal motor vehicles travelling at slower speeds. This case clearly demonstrates the realisation of the potential for such harm in such a catastrophic and tragic way. For these reasons, it seems to me that even given that the offender’s level of inattention leading to the accident was perhaps not much more than momentary, when one takes into account the vehicle he was driving and the circumstances thereunder combined with the catastrophic and tragic results, the only possible sentences are full time custodial sentences.

62. The prosecution correctly submitted to this Court that the following matters are the primary matters that should inform the assessment of objective seriousness: (a) Speed – the offender was travelling at approximately 80km per hour at the time of the collision when he should have been stationary given he entered the intersection against a red traffic signal. (b) Level of distraction – the offender was “eyes down” and failing to pay attention to the road for between 8-11 seconds. Travelling at about 80km per hour, the offender would have travelled a distance of between 178 and 244 metres without watching the road. This is a significant period of time to not be paying attention to the road. The level of inadvertence is significantly greater than one of ‘momentary’ or ‘fleeting’ inattention. While I agree this is a case that is more than momentary inattention, I do not find that it rises to a total abandonment of responsibility. (c) Professional obligations – the offender was a professional truck driver in control of approximately 30 tonnes of machinery travelling at speed at the time of the collision, and therefore owed a heightened level of care and attention to ensure the safety of other road users.

63. In relation to the culpable driving causing grievous bodily harm charge involving Mr Wood, the prosecution correctly submitted that a relevant consideration is the nature and extent of the harm occasioned. The details of the injuries sustained are in evidence before me, and Mr Wood’s Victim Impact Statement goes on to outline how the sustained impact of those injuries continues in his life. It is not contested that the injuries to Mr Wood were extensive, and it is undeniably clear that Mr Wood will continue to be profoundly impacted by his injuries for the rest of his life.

64. The offender had cannabis in his system when a sample of blood was lawfully taken. It is not possible to state with any precision what effect the cannabis had on the offender at the time of the collision noting that there are no presumed ‘impairment thresholds’ with respect to cannabis. Nevertheless, the prosecution submitted it is significant that it is ‘inherently criminal’ to have any level of cannabis in one’s blood while driving a motor vehicle: see s 20 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). However, I find that the extent to which this informs an assessment of the gravity of the offending is, at best, opaque. As the prosecutor appropriately submitted, it is not possible to assert what effect, if any, the cannabis had on the offender at the time of the collision. It is common ground that the offence was not contributed to by the influence of illicit substances. I agree with the submission by counsel for the offender that this aggravating factor is not applicable to this offender in the circumstances of this case, and it is certainly not proven beyond reasonable doubt by the prosecution: see The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at [27]-[28]. See also The Queen v De Simoni (1981) 147 CLR 383 at 389.

65. Having regard to all of these features of the offending, the prosecution submitted that the offending in this matter falls “perhaps on the lesser side of the midpoint” and “between the low point and the midpoint” on the spectrum of objective seriousness for this type of offence. I agree, taking into account the matters outlined above. Nevertheless, what matters in this context are the identifying features of the offences, not the label. That is the matter of substance.

66. The offender correctly submitted that the extent and nature of the injuries inflicted will contribute to the determination of an appropriate sentence in relation to grievous bodily harm: Whyte at [214]. The degree of negligence required to constitute negligently cause “really serious injury” (or death) has been described as an act taking place in such circumstances which involved such a great falling short of the standard of care, “unjustifiably and to a gross degree”, which a reasonable person would have exercised, and which involved such a high degree of risk that serious injury would follow, that the act merits punishment under the criminal law.

67. In R v Wolter (No 3) [2015] ACTSC 321 (Wolter), Refshauge J said at [57]-[58]: As we know only too well, a motor vehicle is a lethal weapon, that it is widely available and used regularly by a vast proportion of the population. In Murnin v The Queen (Unreported, New South Wales Court of Criminal Appeal, Street CJ, Cantor and Roden JJ, No 240 of 1984, 16 August 1985) at 9, Street CJ, with whom Cantor and Roden JJ agreed, said: A motor vehicle is a potentially dangerous – indeed, lethal – machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose.

68. The characteristics and factors to be considered, as submitted by counsel for the offender with reference to the guideline judgment of Whyte include the following, which I have taken into account in coming to my conclusion concerning the guideline judgment. (a) Young offender: (i) The offender can be described as a younger man, being 29 years old. (b) Good character: (i) The offender has no antecedent criminal history. At the time of the offence, he was gainfully employed. (c) Death or permanent injury to the victim: (i) In relation to the first charge, Mr Urquhart was killed. The “substantial and operating cause” of Mr Urquhart’s death was the collision caused by the offender’s driving: see Richardson at [91], [106], [113]-[114]. (ii) In relation to the second charge, Mr Wood suffered very serious injuries, as outlined in the agreed Statement of Facts. (d) Victim is a stranger: (i) Both victims were strangers to the offender. (e) Injury to the driver: (i) The offender suffered minor physical injuries from the offence.

69. I will discuss remorse and the pleas of guilty under their respective headings later in this judgment, rather than in relation to this discussion of the guideline judgment. In contrast, the guideline judgment discusses these matters together.

70. Counsel for the offender appropriately conceded the presence of certain features, while noting the absence of others. These are noted as follows: (a) Extent of the injuries: (i) The injuries to Mr Wood were significant. Of further particular note, Mr Wood was admitted to the ICU for some five days, required a surgical procedure under a general anaesthetic, and is likely to experience ongoing consequences as a result of the injuries sustained. (b) Number of people put at risk: (i) The people put at risk were the victims as the two vehicles entered the intersection at the same time as the offender. (c) Speed: (i) The submission of counsel for the offender was that speed was not applicable to this offender, who was travelling below the legal sign posted speed limit in the moments prior to the collision. I note, however, that the offender should have been stationery, obeying a red traffic light at the time the collision occurred. (d) Intoxication or substance abuse: (i) The submission of counsel for the offender was that the offender had traces of cannabis in his system. However, it was not suggested by the prosecution that the offender was intoxicated or impaired. I have noted above that this circumstance of aggravation has not been proven in this case. (e) Aggressive driving: (i) Not applicable. (f) Competitive driving: (i) Not applicable. (g) Length of journey at which others were at risk: (i) The period that others were at risk was for a number of seconds, being the time that the offender glanced down towards the truck dashboard, taking his eyes off the road. That has been estimated by experts to be between 8 and 11 seconds. This, as I have said earlier, is not mere “momentary inattention”. (h) Ignoring warnings: (i) Not applicable. (i) Escaping police: (i) Not applicable. (j) Degree of sleep deprivation: (i) Not applicable. (k) Failing to stop for police: (i) Not applicable.

71. In Whyte, Spigelman CJ stated at [214] that a custodial sentence will usually be appropriate, unless the offender has a low moral culpability as in the case of momentary inattention or misjudgement: see also Spigelman CJ’s comments in Whyte at [228]. In my view, a period of 8 to 11 seconds cannot be said to be momentary inattention. Eight seconds when approaching a traffic signal is not momentary inattention. It is a sustained period of inattention. It was incumbent upon the offender to stop the heavy vehicle in a safe place to investigate the noise, not to go through a red light.

72. It was properly conceded by counsel for the offender that the standard of care of a commercial or professional truck driver may be viewed as being higher than that of an ordinary member of the driving public due to the increased vulnerability of surrounding smaller and lighter vehicles: see Livas at [28], [36]. In my view, this is important in relation to considering objective seriousness. On the evidence, it was not a complete abandonment of responsibility, but it was not mere momentary inattention. However, as I stated earlier, it was a sustained period of inattention.

73. Counsel for the offender submitted that the offender made frank admissions to police and investigators that he took his eyes off the road for a number of seconds in response to an alarm sounding in his truck cabin. The submission by counsel for the offender was that this was not an example of a deliberate action; but a matter of momentary inattention as opposed to an abandonment of responsibility. Counsel for the offender submitted that in these circumstances, and taking into account the offender’s low moral culpability, momentary inattention and the distinct absence of many aggravating features noted in the guideline judgment, the offending falls below the mid-range for offences of this type and is otherwise towards the lower end of the range. I agree it is below the mid-range as discussed earlier.

74. Nevertheless, in conclusion and as stated earlier, I do not accept that the time period in question was a matter of momentary inattention.

Subjective circumstances

75. Section 33(1)(m) of the Sentencing Act requires the Court to consider the subjective factors relevant to the offender. I now consider the evidence before me relevant to the subjective circumstances of the offender.

76. The offender is a 29-year-old husband to his wife and father to two children, a girl aged 7 and a boy aged 2. The young daughter is in Grade 1 at primary school and the young boy attends childcare during the times the offender’s wife works. The family currently resides in rental accommodation. The relationship between the offender and his wife is loving and caring.

77. The offender was born in Tasmania and is the eldest of six children. His upbringing, counsel for the offender submitted, was dysfunctional and unstructured. As the eldest child, the offender was often relied upon to provide care and support to his younger siblings in circumstances where he was made to feel that his existence was a burden upon his parents, and where he was often provided only the essentials to meet basic caring needs.

78. Counsel for the offender submitted that his upbringing was marred with frequent violence, both verbal and physical, perpetrated by both parents on him and his siblings.

79. The offender’s father died in horrific circumstances because of a workplace accident when the offender was just 12 years old, shortly after the family had relocated to Canberra, ACT. In 2014, one of the offender’s brothers was injured in a motorcycle accident, becoming a paraplegic (paralysed from his chest down).

80. Following his father’s death, counsel for the offender submitted the offender’s mother effectively abandoned him, “kicking” him out of the family home. Thereafter, he spent time either in refuges or couch surfing. At approximately the same time, the offender commenced self-harm.

81. Counsel for the offender submitted that a person who has had a period of upbringing that has been marred by dysfunction and disadvantage permits the Court to apply the principles enunciated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy). Bugmy requires the Court to take into account disadvantage and dysfunction as being relevant to the sentencing exercise, affecting the offender in ways that may explain adverse contact with the authorities.

82. The High Court noted in Bugmy at [43], amongst other things, that: The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

83. At [44], the majority in Bugmy went on to say: Because the effects of profound childhood deprivation do not diminish with the passage of time in repeated offending, it is right to speak of giving “full weight” to the offender's deprived background in every sentencing decision.

84. See also R v Massey [2022] ACTSC 3 at [67]-[70], [72], [87] and R v Haven (a pseudonym) [2022] ACTSC 25 at [49]-[53] per Norrish AJ.

85. Counsel for the offender submitted that his history of disadvantage may enliven the Bugmy principles.

86. Counsel for the prosecution correctly conceded that the offender had a disadvantaged upbringing. The prosecution submitted, however, that the application of Bugmy is moderated in this case given there is no causal nexus between that disadvantage and not paying attention to the road, referring to R v Hagen [2022] ACTSC 362; 374 FLR 260 (Hagen) at [42] on the question of moral culpability.

87. The prosecution submitted that in the circumstances where there was no nexus, any resultant reduction would be “limited” on moral culpability.

88. While I accept that there is no causal link between the offending and the offender’s disadvantaged upbringing, that is not the end of the matter. Indeed, Baker J noted at [38] of the same decision in Hagen that: There is no question that an offender’s disadvantaged background must be taken into account in determining the sentence to be imposed, regardless of whether or not there is a causal connection between the offender’s background and their offending. So much is clear from the High Court’s statement in Bugmy that “‘full weight’ must be given to an offender’s deprived background in every sentencing decision”. (emphasis added)

89. In the passage the prosecution referred me to in Hagen at [42], Baker J went on to say the following: …Of course, in each case, it will be necessary to consider the impact of the offender’s disadvantaged background in the assessment of each of the purposes of sentencing as set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (“Sentencing Act”).

90. Therefore, it is evident that the offender’s disadvantaged upbringing is a relevant consideration in sentencing the offender.

91. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy at [41]-[44]. What is clear from Bugmy, and subsequent case law, is that: (a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44]; (b) the Bugmy principles do not diminish in relevant where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133 at [3] (Irwin); and (c) the application of the Bugmy principles is not discretionary: Irwin at [3].

92. I have no doubt on the evidence before me that the offender has experienced significant childhood disadvantage. So much is agreed in this case. It is appropriate I take this into account on sentence, in the manner set out above at [91] concerning subjective factors, as opposed to the limited relevance to moral culpability.

93. The offender is currently not employed, primarily during to anxiety and stress related to the instant sentencing proceedings. Following the accident, he stopped working for the towing company as he did not want to be on the road driving at the same time as other drivers, due to his anxiety. The offender did, for a short period, drive a garbage truck between the hours of 3am and 8am; predominately because, it was submitted to this Court, he felt more comfortable driving on the roads because they are not as busy with traffic at that time.

94. Since the accident, the offender has engaged with counselling and other intervention services to assist with symptoms of anxiety, depression and Post-traumatic Stress Disorder (PTSD). He has a current Mental Health Care Plan in place, and this plan is before the Court.

95. Counsel for the offender did not make submissions regarding any application of R v Verdins [2007] VSCA 102.

96. Counsel for the offender tendered a number of letters which also speak to the offender’s subjective circumstances. I also note in evidence before me is a Pre-Sentence Report (PSR).

Pre-Sentence Report dated 19 July 2023

97. The PSR includes the following in relation to the offender’s subjective circumstances.

98. As referred to above, the offender reported an unstructured and dysfunctional childhood in which he was often relied upon to provide care and support to his younger siblings. The offender described a home environment in which both his parents initiated verbal and physical assaults towards each other and the children.

99. As referred to earlier, the offender stated that he has been in a relationship with his partner for approximately 10 years. They share two children.

100. The offender’s friend verified that he had a poor relationship with his parents growing up, commenting that the offender and his siblings were not offered much in the way of parental support and were often solely responsible for their own decisions from a young age. The friend believes the offender’s wife is a positive influence on the offender.

101. The offender is residing with his partner and children in a private rental property. ACT Corrective Services conducted a home visit on 10 July 2023. It was noted that the residence was found suitable should an Intensive Correction Order (ICO) be imposed.

102. This was the third address change for the offender and his family in the last 12 months. The offender was previously renting a residence through a real estate agent. He reported that they were given a 30-day notice to vacate the property. He suspected that the real estate agent became aware of the current listed offences. Prior to that, the offender and his family were residing with a friend. Counsel for the offender did not make submissions concerning extra curial punishment in this regard.

103. The offender ceased mainstream education following the completion of Year 10. He advised that he ‘scraped through’ Year 10, reporting that he was unfocused due to the death of his father and his subsequent mental health issues. He reported to have enrolled in Year 11, however, due to being homeless and other life stressors, ceased attending after a couple of weeks.

104. Since that time, the offender has held a few periods of employment, mostly in the transport sector.

105. The offender is not currently in receipt of an income, by social assistance or employment. He relies on his partner to support him financially. The offender believed if he were to rely on social assistance, this would reduce his likelihood of attaining employment. He and his partner advised of joint debts. They both advised that they often have trouble meeting their financial commitments and regularly stress over money.

106. The offender advised of two friends with whom he speaks to regularly. The offender advised that his current friends are pro-social.

107. The offender advised that he regularly drank alcohol to intoxication in his late teens, however reported he ceased use at the approximate age of 21 years as his partner fell pregnant. He stated he now consumes alcohol on social occasions, rarely consuming more than four standard drinks at a time. This information was verified by his partner.

108. The offender advised regular cannabis use throughout his teenage years, which continued up until the current listed offences which occurred in September 2021.

109. The offender stated that he first tried methamphetamine at the approximate age of 18 years. He advised his use quickly escalated to the point where he was spending all his money to fund the habit. The offender claimed he ceased use of the drug around the age of 20 years. He has not engaged in any formal alcohol or drug treatment.

110. The offender reported no illicit substance use since the commission of the current listed offences which occurred in September 2021. In preparation for this PSR, the offender was directed to provide a sample for drug testing on two occasions, returning a negative result on both occasions.

111. The offender does not partake in any organised pro-social activities. He advised he enjoys playing video games and spending time with his family in his spare time.

112. The offender reported multiple instances of self-harm following the death of his father at the approximate age of 12 years. He reported one instance where he attempted to take his own life. Afterwards, the offender reported feelings of anger towards himself for the attempt, and quickly realised he did not wish to take his own life.

113. The offender believed he is experiencing the symptoms of PTSD following on from the offences. He reported that he engaged with a number of intervention services to address his poor mental health following the offences. He stated that he would be interested in engaging with further treatment and counselling to address his mental health concerns. The offender stated that he has a current Mental Health Care Plan, and he is on a waiting list to engage with a psychologist.

114. The offender agreed with the agreed Statement of Facts and accepted responsibility for his offending behaviour. He struggled to accept that his actions were negligent, stating that “anyone in his position would have made the same decisions and it was just extremely unlucky that this situation occurred”. This was the subject of submissions. I deal with this later concerning remorse.

115. He admitted to smoking cannabis on the Sunday night prior to the offence occurring on the Wednesday, rationalising that he was due to return to work on the Thursday and the cannabis would no longer be in his system.

116. The offender reported he had no intent to harm the victims of the offence and that this was an unlucky chain of events that caused the death of and permanent injuries to innocent persons.

117. In a letter dated 17 July 2023, Everyman Australia reported that the offender engaged with their Service following the current listed offences. The offender engaged with their Service on eight occasions, and it was observed he “demonstrated an appropriate level of remorse and regret for the accident and displayed a corresponding level of personal guilt and trauma”.

118. In a phone interview on 18 July 2023, the offender’s friend recounted to the author of the PSR numerous occasions in which the offender had discussed the offences in detail with him. He recalled the offender reflecting on how his behaviour and the corresponding consequences affected those involved including the victims, the victims’ families, bystanders, first responders and his family.

119. The author of the PSR considered the concerns of “multiple victims” for the preparation of the PSR. It should be noted that not all the victims consulted wished to provide information for the purpose of the PSR. Of the victims that did provide a response, they indicated they did not have concerns should the offender be sentenced to a community-based order. In this regard, I note my earlier comments at [45].

120. The PSR stated that the offender’s protective factors include his current and stable accommodation, family support, and low use of alcohol and illicit substances. Ongoing factors of concern are his mental health and lack of employment.

121. The PSR stated that the offender appeared to experience a turbulent childhood, which reportedly lacked nurturing and support. Currently, the offender has the support of his family, and some close friends. As stated earlier, he has attained a Mental Health Care Plan and hopes to engage with a psychologist in the near future.

122. Additionally, the PSR stated the offender has discussed his behaviour which led to the current listed offences with an Everyman Australia counsellor and some close friends. The author noted that the offender appeared to have accepted responsibility for his behaviour, and discussed how his behaviour impacted all those involved.

123. The PSR concluded that the offender is suitable for a medium level of intervention by ACT Corrective Services, commensurate with the assessed risk. Supervision would include strategies to address the following identified areas of dynamic risk: (a) Illicit substance use; (b) Mental health; (c) Employment; and (d) Leisure and recreation activities.

124. The offender was assessed as suitable for a community service work condition. The offender was assessed as suitable for an ICO.

Mental Health Care Plan

125. Counsel for the offender tendered a copy of the current Mental Health Care Plan which was arranged through his General Practitioner. It is dated 13 April 2023.

126. The Mental Health Care Plan noted the offender has severe anxiety and depression and is seeking therapeutic supports to address his ongoing mental health difficulties that have arisen since the collision.

Letter from EveryMan dated 17 July 2023

127. A letter was tendered in support of the offender authored by an Integrated Service Practitioner providing counselling through EveryMan. The letter includes the following: [The offender] was referred to our service, for counselling, by ACT Policing through SupportLink. The referral was received 22 September 2021. [The offender] was placed on our waiting list at that time. An initial appointment occurred on 8 October 2021. [The offender] engaged, with me, for a total of 8 sessions. … In our times together we reflected on issues related to the traffic [accident] in which [the offender] was involved and the charges that have come before the court. I observed an owned, personal commitment to the counselling process. [The offender] appeared candid in recounting the relevant events leading up to, and occurring at, the time of the accident. He demonstrated an appropriate level of remorse and regret for the accident. He also displayed a corresponding level of personal guilt and trauma. [The offender] discontinued engaging with the counselling process when it was judged by both of us that all the relevant therapeutic work that could be done at that time had been done. He did make a commitment at the time to re-engage with me if he felt the need. However, no further appointments were made beyond those detailed above. Remorse

128. Section 33(1)(w) of the Sentencing Act requires the Court to have regard to any demonstration of remorse.

129. The prosecution referred to a portion of a passage in CD v The Queen [2013] VSCA 95 (CD), where the Victorian Court of Appeal observed at [36] that: ‘Remorse’ is a word frequently employed during plea hearings. Yet it is not putting it too starkly to say that there is very often no substantive justification for its use. Although they too often masquerade as remorse, self pity or regret at being caught do not, or at least should not, qualify. Nor is a plea of guilty, without more, necessarily evidence of remorse.

130. Nevertheless, the judgment of CD at [36] also includes the following, which was not referred to by the prosecution in written submissions: …But when convincing evidence of genuine contrition is placed before a sentencing court it should in my opinion be given great weight. I respectfully agree with that passage, quoted above from Phillips, in which Redlich JA and Curtain AJA said (in effect) that, where the evidence justifies it, the sentencing discount should fully reflect what their Honours referred to as ‘these subjective criteria’.

131. The prosecution also referred to the following paragraphs in Barbaro v The Queen [2012] VSCA 288; 226 A Crim R 354 (Barbaro) at [38]-[40], reproducing the following passage in written submissions: It follows, in our view, that a person wishing to rely on remorse as a mitigating factor needs to satisfy the court that there is genuine penitence and contrition and a desire to atone. In many instances, the most compelling evidence of this will come from testimony by the offender. A judge is certainly not bound to accept second-hand evidence of what the offender said to a psychiatrist or psychologist or other professional, let alone testimonials from family or friends, or statements from the Bar table.

132. An additional portion was omitted by the prosecution that follows in the judgment at [39]: … If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence. An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy — in the form of a material reduction in what would otherwise be an appropriate sentence — is very likely due…

133. The prosecution submitted to this Court that the Court would be circumspect in accepting that the offending is genuinely remorseful: see Forster-Jones at [69]. The PSR author noted that the offender “struggled to accept that his actions were negligent, stating that “anyone in his position would have made the same decisions and it was just extremely unlucky that this situation occurred””. However, I do not find that this statement to the PSR author overshadows the context of the many statements of remorse made by the offender that are in evidence before me.

134. The prosecution acknowledged that the offender has written letters to the victims of the offending which outline his remorse for his offending conduct.

135. Relevant to the offender’s remorse are letters tendered to this Court under the hand of the offender, addressed to the victims and family of the victims impacted by his offending.

136. The letter to the family of Mr Urquhart includes the following: I would like to apologise and offer my sincerest condolences to you all as well as everyone that was a part of Mr Urquhart’s life. Nothing I could say or do can undo what has been done even though I wish it could. I think about this daily and the pain you have all suffered through [losing] a family member in such horrible circumstances. I wish I could take it back, I am heartbroken that this has happened and I will carry this guilt for the rest of my life. I am truly sorry.

137. The letter addressed to Mr Wood and his family includes the following: I would like to apologise for being the cause of your pain over the last two years both physically and emotionally. I am sorry that you have experienced so much trauma and have missed out on your regular life as a result of my actions. There is not a day that goes by since the accident that I don’t think of you and your family and how much you must have suffered and still be suffering. I know an apology will not fix anything but it is all I can offer and I hope it may help in the healing process emotionally and mentally. I am truly sorry.

138. The offender also tendered a letter under his own hand addressed to this Court. This letter includes the following: I Jake Barrett would like to sincerely apologise that we stand in this court regarding this matter. I apologise for all the time we have been in and out of court for this matter and taking up valuable court time. I apologise to your Honour for having to be in this court today for this matter and to all the Magistrates and court officials who have had to handle the matter in any way of the last two years.

139. Counsel for the offender submitted the offender has displayed genuine remorse since the accident, both initially to the police roadside, and as evidenced by the letters to the victim, the victims’ families, and the Court, and from his counsellor. The author of the PSR further opined that the offender displayed genuine remorse and contrition. I accept that the offender has demonstrated remorse on the evidence before me.

140. It was submitted that the letters written by the offender to this Court and the victims express genuine sorrow, remorse, contrition, and carried guilt as having been the person responsible for such a tragic accident. It was submitted that the offender’s remorse is evident and demonstrable, and he is profoundly contrite for what has occurred. I accept this submission.

141. Counsel for the offender submitted that this Court should have no reason to dispute or rationalise that the offender is anything but genuinely remorseful. The offender, it was submitted, carries considerable grief and sorrow for the harm caused by his actions.

142. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with caution: see Butters v The Queen [2010] NSWCCA 1 (Butters) at [18], Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ. Nevertheless, Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is relevant to the weight of the evidence: Butters at [18], Mun v The Queen [2015] NSWCCA 234 at [37].

143. Nevertheless, it is clear on the evidence remorse is demonstrated. Indeed, expressions of remorse are part of the agreed facts. I take remorse into account on sentence in light of the foregoing.

References

144. Three references authored by the wife and friends of the offender were tendered in support of the offender.

145. A reference under the hand of a close friend of the offender has been received by this Court. This eloquent letter includes the following: I’m a professional driver in the transport industry for over 40 years. I have known Jake for 12 to 13 years. I met him through my wife… who was very good friends with his mother and family for many years before that, as Jake grew from adolescent to adulthood him and I became close friends and have been for all his adult life. I understand Jake has been charged with culpable driving occasioning death and culpable driving causing grievous bodily harm following a collision between the truck he was driving and two cars on 15/09/2021 on the Barton highway near Mitchell in the ACT resulting in the death of one car driver, and the driver of the second car being very seriously injured. [Although] Jake’s childhood and teenage years lacked guidance and learning of important life skills due to being raised in a very at times toxic environment with parents separating and then the loss of his father in a workplace death, after which Jake was forced out of home at just over 13 years old causing emotional instability for many years. Jake still managed on his own to become a responsible and accountable adult. He is a very loving and caring father and husband to his two children and wife… he values the family unit and gives all he can to create a wonderful life and environment for them. Since the accident I have spent many hours with Jake, he questions everyday how the victims, their families and friends have been or may have been impacted by his grave error in judgement when I watch Jake tear himself down with remorse as he goes through this over and over it does show that he really is a man with values that benefit society, he is accountable, responsible and compassionate, strong enough to go on and give all for his family but emotional and understanding enough to never forgive himself, or forget the accident and the impact it has had on so many people at so many levels …

146. Another reference under the hand of a close friend of the offender has also been received by this Court. This similarly eloquent letter includes the following: This is a character reference for Jake Barrett. I provide this reference in full knowledge of Mr Barrett’s charges of culpable driving. … I have known Mr Barrett for the previous thirteen years as his close friend and in a professional environment, [these] charges against him at once strikes me as a completely uncharacteristic aberration, and one which I believe he sincerely and completely regrets. Mr Barrett is a young man of integrity and honesty. He is a community-minded individual who regularly puts the need of others before his own, [h]e is a dedicated, loving husband and [father]. Over the past thirteen years I have watched Jake go from being a young boy with no stable home to a reliable man who provides for his family. A testament to his placement of others needs above his own. He has worked tirelessly for the trucking and logistics industry. Jake started his career working as a tow truck operator for A plus towing at the time I was the dispatcher for the company. Without doubt Jake was the first to arrive and last to leave every day. He used to come to my house to help me work on cars at least once a week since the accident Jake has been severely depressed only leaving home for work and the odd appointment. He has disengaged from our friend group on many occasions we have him to go out and distract his mind, but he declines due to his mental state. Jake and I have spoken about the accident many times and he shows remorse to the families and people involved …

147. Finally, this Court is also in receipt of a character reference under the hand of the offender’s wife. This eloquent and thoughtful letter includes the following: When I have thought about what I wanted to say and how it has affected not only my husband Jake Barrett but myself and my family I have been struck with anxiety and have put off writing it for a long time … Jake and I have been together for 10 years and married for 4. We share 2 children together aged 2 and 7. I will start with how Jake was before the accident, Jake was a fun warm loving person. He worked hard to provide for this family and was the most loving father and husband. He would ride his bike in his spare time, we would go to the park with the kids or socialise with friends. Since the [accident] Jake has confined himself to one room in the house, her barely leaves it. He has not slept for more than a few hours a night in the last two years this is a result of nightmares and crying in his sleep to which he has to be woken up and comforted. He is avoiding sleep because of this. If I had to describe my husband the best way would be that he is in a zombified state. He doesn’t talk much and it is a struggle to get him to leave the house (even if just into the backyard). The minute he steps out of the house and has anxiety attacks and straight away wants to get back to comfort within the house. He does not engage as much as he used to with our children. Him and I barely talk or engage anymore either. He has expressed to me on many occasions that the accident replays in his mind constantly and that is why he is so shut down. If I was asked if I felt like I still had my husband with me my answer would be no. My husband died that day of the accident and has been replaced with a hollow shell of a man that is just not there anymore. He is a ghost of himself. This whole thing has been very hard on our children. They know daddy had an accident and they know people were seriously hurt. They were with me when Jake called me to tell me what had happened. They saw the panic on my face as I got off the phone and quickly rushed them to their grandparents house only to see images of the accident on the news that night. They saw dad come home covered in bruises and cuts with stitches in his face. They saw the empty broken mind state he was in. They saw him [lose] weight very quickly as a result of him not being able to eat. They have missed out on so much quality time with their father. My daughter (7) often mentions she misses him and how he used to be and it upsets her. She can’t understand why her dad is not the same as he used to be. As for myself I have had to take on the [role] of both mum and dad as well as being a carer for my husband as well as trying to run a household and work full time. I myself at the time of the accident was battling post-natal depression and the trauma of the massive life change still impacts me as I wasn’t given a chance to deal with my depression and anxiety. I sleep very little as I am woken constantly during the night by Jake being unsettled. I have suffered with insomnia as a result of this. As a family I feel we have suffered dramatically. We have lost friends, we are talked about by people in the community that know us. We have lost 2 rental properties in the span of 12 months as a result of the charges and police presence at the house. We are looked at as criminal family in the community now. One of the hardest parts has been the financial side. Move house twice, going on a single income and legal fees have been crippling to us. Prior to the accident we had no debts but now currently have over $60000 in debt which include energy bills which was never an issue prior to this. Every aspect of our lives has been affected from social, financial and everyday life. I often think of the families affected by the accident. I would like to send my condolences and apologies to both parties. I hope you will heal and recover not only physically but mentally just as we are trying to do so.

148. I take these important references into account on sentence and acknowledge the hardship occasioned to the offender’s wife and children as described in the evidence. While noting that, counsel for the offender did not advance submissions concerning hardship to third parties, but rather as a matter concerning subjective factors. See the discussion regarding hardship in R v BC (No 4) [2021] ACTSC 119. A sentence judge can take into account the effect of imprisonment on the offender’s family as part of the general mix of subjective factors: R v Girard [2004] NSWCCA 170 and R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124 at [27]-[29].

Criminal history

149. The offender has no criminal record. At the time of the offence, he was gainfully employed. Counsel for the offender submitted that the offender should be afforded significant leniency in relation to this evidence. I take the lack of criminal history and previous good character into account on sentence as a mitigating factor.

Pleas of guilty

150. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. Monfries at [47] noted that the ACT Courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].

151. Counsel for the offender submitted that the pleas of guilty have a utilitarian value. It was submitted that a discount is therefore appropriate in the circumstances. That is agreed as between the parties, but not in relation to the extent of the discount. Counsel for the offender submitted a discount in the range of between 10 and 20 percent would be appropriate in the circumstances of this case.

152. The prosecution declined to make a submission as to range relying on Barbaro.

Procedural history

153. The procedural history of this matter is complicated, and it is worthy of recounting. The trial was initially listed to commence on 19 September 2022. At the time of listing the first trial, a pre-trial application by the offender was noted to be listed for August 2022 seeking the exclusion of some evidence.

154. On 15 August 2022, the prosecution received an Application in Proceeding dated 12 August 2022. The prosecution sought to vacate, by consent, the pre-trial application listing that was scheduled for 22 August 2022, noting more time was required by the prosecution to consider the materials. The pre-trial application was then re-listed for 12 September 2022.

155. On 26 August 2022, a Criminal Case Conference was held and the matter was not resolved at that time. At a directions hearing on 7 September 2022, the prosecution foreshadowed to the Court that a key prosecution witness was unavailable for the first day of the trial. The prosecution noted at that time that, if the offender’s application to exclude evidence were to be successful, the issue of the unavailability of the witness would fall away. Also on 7 September 2022, in chambers orders were made to re-list the pre-trial application to 19 September 2022, the original trial commencement date.

156. At a directions hearing on 14 September 2022, the trial listing for 19 September 2022 was vacated and re-listed for 20 September 2022, and the pre-trial application listing for 19 September 2022 was confirmed. The bench sheet recorded that if the application by the offender was unsuccessful, the position would be that the trial does not proceed at that stage.

157. The pre-trial application was heard by McCallum CJ on 19 September 2022. The application was heard over one day, with a number of police officers being cross-examined by the offender’s counsel at the time. The parties filed detailed written submissions. On 20 September 2022, McCallum CJ refused the offender’s application as it related to the exclusion of particular evidence. The trial was then adjourned because of the unavailability of a key prosecution witness, and a new trial date of 3 April 2023 was set.

158. Following a successful second Criminal Case Conference in which the offender was represented by new legal representatives, the offender entered pleas of guilty on 30 March 2023. No witnesses were required to give evidence or be cross examined on committal or at trial.

Is the case overwhelmingly strong?

159. The prosecution submitted this is a matter where s 35(4) of the Sentencing Act is engaged. That provision provides that “[h]owever, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the Court considers that the prosecution’s case for the offence was overwhelmingly strong”: see The Queen v Newby [2022] ACTCA 20 (Newby).

160. The prosecution’s submission in this regard was that, taking into account the evidence and the test postulated in Newby, “a practical assessment of the reality of the situation” would lead to the conclusion that “an acquittal [would be] realistically unlikely”: Newby at [31].

161. I note that s 35(4) of the Sentencing Act was also subject of detailed consideration in Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 (Cooke).

162. Cooke established that the effect of s 35(4) is that the strength of the prosecution case is not relevant in deciding whether to impose a lesser penalty for an offence in recognition of a plea of guilty unless the prosecution case is “overwhelmingly strong” (at [47] (per Loukas-Karlsson J (Mossop J agreeing)) and [83] (per Rangiah J)).

163. In R v Snowden [2022] ACTSC 186, Mossop J suggested at [48] that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), will be in the order of 5 percent: see also DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142.

164. The discount imposed pursuant to s 35 is a discretionary matter for the sentencing judge: see Cranfield v The Queen [2018] ACTCA 3 at [37], Heard v The Queen [2015] ACTCA 6 (Heard) at [62]. Discounts in the range of 10-25 percent represent common discounts: Heard at [62]. The benefits of a guilty plea following a case conference were stated in Blundell v The Queen [2019] ACTCA 34 (Blundell) at [12]: The benefits, not only to the accused person, but also to the Crown (representing the community) and to the courts are so significant that a discount in excess of 10%, and almost always within the range of 15 to 20%, is required.

165. Before proceeding I note it is not appropriate to deal with the question of remorse under the heading ‘Pleas of guilty’, but rather when dealing with remorse as a distinct matter. I have dealt with remorse earlier in this judgment.

166. In DPP v Calhoun (a pseudonym) [2023] ACTSC 189 (Calhoun), Mossop J made observations at [63]-[64] that while a discount may be reduced under s 35(4), where admissions were made that necessarily contributed to the strength of the case, those admissions will have facilitated the course of justice. This was accepted by the prosecution. Mossop J stated at [64]: The plea of guilty in relation to the second series was entered in the Children’s Court at an early stage before a full brief of evidence had been prepared. The offender would ordinarily be entitled to a 25 percent reduction in relation to these offences. However, the prosecution submitted that s 35(4) of the Crimes (Sentencing) Act was engaged. One of the principal reasons why it was engaged is that the offender made candid admissions to police about the fact that he was the driver of the motor vehicle. That admission was supported by the statements made by Mr F that the offender was the driver. Having regard to the elements of the offence of culpable driving causing death I agree with the submission of the prosecution that, adopting the language in R v Newby [2022] ACTCA 20, an acquittal would be realistically unlikely. Without more that would mean that no substantial discount could be given on account of the plea of guilty. That would limit the discount available to approximately five percent: R v Snowden [2022] ACTSC 186 at [44]. The effect of s 35(4) would be to deny the offender a discount on account of the plea of guilty because of the strength of the prosecution case in circumstances where the strength of that case arose from voluntary admissions made by the offender. This would appear to be an outcome which was unfair and reflected no real sentencing purpose. However s 35(4) must be read along with s 36 which permits a lesser penalty to be imposed where the offender has assisted in investigating the offence or assisted in a proceeding in relation to the offence. That must include the making of admissions that assist in the investigation or prosecution of the case against the offender. Nothing in the considerations in s 36(3) indicate that assistance in this form is not within the contemplation of the section. In circumstances where the offender would have been entitled to a reduction of 25 percent under s 35 but for the making of admissions that assisted the prosecution case, it is appropriate that he receive that discount by a combination of ss 35 and 36 of the Crimes (Sentencing) Act. Therefore the second series of offences will be subject to a 25 percent reduction.

167. It then follows that a discount under s 35(4) may be only 5 per cent. A discount may be available under s 36 of the Sentencing Act; that is to say, assistance has been given to law enforcement.

168. In all the circumstances of this case and taking into account the admissions made by the offender, I find that while the prosecution case is very strong, it does not rise to the threshold of being “overwhelmingly strong”. I also take into account the procedural history of the matter. I have applied the relevant authorities noted above, including Cooke. I do not consider that s 35(4) is engaged. In any event, the ultimate discount afforded in the circumstances of this case must be read in light of s 36 of the Sentencing Act and Mossop J’s decision in Calhoun noted above.

169. In my view while it is correct to say that the case was very strong; overwhelmingly strong is a high bar. I have considered all the matters the prosecution has emphasised in this regard. Nevertheless, in my view the s 35(4) standard of overwhelmingly strong is not met in this case. Taking all the foregoing into account I will ascribe a 15 percent discount in relation to the pleas of guilty, applying Blundell, and a further 5 percent under s 36. Therefore, the total discount in this case amounts to 20 per cent.

Comparable cases

170. Section 33(1)(za) of the Sentencing Act requires the Court to have regard to current sentencing practice.

171. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550 (Pham). Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 (Dalgleish) at [4], sentencing is not a mechanical process: [C]onsiderations to which a sentencing judge is obliged… to have regard cannot be applied mechanically… given that the factors that must be taken into account are incommensurable, and… in many respects, inconsistent.

172. The Court in Dalgleish emphasised that the sentencing process involves individualised justice which requires the imposition of a sentence which does justice according to the circumstances of that individual case.

173. In Kilic, the High Court noted at [22] that prior cases dealing with the same offence: … [M]ay provide a relevant "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles but that the requirement to have regard to the sentences imposed in those cases does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a "broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle"

174. The prosecution submitted that regard should not only be had to the ACT sentencing range for like offences, but also to that in other jurisdictions for comparable offences: see R v Robertson [2010] QCA 319; Stebbins v Tasmania [2016] TASCCA 6; 259 A Crim R 159; R v Benning [2022] NTCCA 15.

175. In this context it is well to note that in Pham at [29], the plurality of the High Court stated the following, emphasising that a sentence itself gives rise to no binding precedent: … It is settled that, in the absence of binding authority from this Court, an intermediate appellate court must follow a statement of legal principle by another intermediate appellate court unless persuaded that it is plainly wrong. It is also settled that a "sentence itself gives rise to no binding precedent" …

176. Authorities from outside the ACT may be considered. A sentencing judge must nevertheless consider the ACT maximum penalties, relevant ACT authorities, and the specific facts of the individual case to achieve individualised justice.

177. In 2012, the maximum penalty for the offence contained in s 29(2) of the Crimes Act was increased from 7 to 14 years’ imprisonment. The Explanatory Memorandum for the amendments included the following: “This will allow ACT courts to take further guidance, where they determine appropriate, from the sentencing decisions in other jurisdictions”.

178. The equivalent offence in NSW under s 52A of the Crimes Act 1900 (NSW) is punishable by 10 years’ imprisonment. As above, the relevant ACT offence under s 29(2) of the Crimes Act is punishable by 14 years’ imprisonment.

179. The offender conceded that only a sentence of imprisonment is warranted: s 10(2) of the Sentencing Act, but further submitted that it is a matter of how that imprisonment is to be served.

180. Counsel for the offender properly submitted that “individualised justice” is paramount (see Dalgliesh at [49] per Kiefel CJ, Bell and Keane JJ). Each case must be approached on its own facts.

181. Further, counsel for the offender submitted at the outset that, in relation to comparative authorities and sentences for the offence of culpable driving causing grievous bodily harm, Murrell CJ opined in R v Castles [2018] ACTSC 358; 87 MVR 187 at [50]: “The sentences imposed by this Court for offences of this type do not demonstrate a clear pattern”.

182. Counsel for the offender again properly submitted that such can be said, taking into account the differing characteristics of the offending and injuries, no two matters are identical.

Culpable driving causing death

183. In Calhoun, Mossop J sentenced the offender in relation to two charges of culpable driving causing death, along with other related offences. This was a matter that involved a string of offending and other related offences. The offender was a young person and ACT learner driver at the time and was not allowed to drive without a fully licenced person. The culpable driving involved driving at excess speeds while intoxicated. Ultimately, the offender lost control of the vehicle and collided with a tree, and the offender fled the scene. Two people who were passengers of the vehicle died as a result of the collision. For each culpable driving charge the offender was sentenced to 27 months’ imprisonment, allowing for some cumulation. The total sentence was 3 years and 10 months’ imprisonment, suspended after serving 24 months’ imprisonment upon entering into a Good Behaviour Order (GBO).

184. The offender in Creighton was sentenced in relation to two counts of culpable driving causing death and one count of culpable driving causing grievous bodily harm. This was prior to the ACT’s change in maximum penalties. The offender was driving his vehicle in a built-up residential area with three passengers at speed; the limit was 60km per hour and investigators found that the offender was driving at 113km per hour. The offender lost control when taking a corner too quickly and collided with a tree. One passenger died at the scene and another later at hospital after arrival. The third suffered injuries amounting to grievous bodily harm. The offender had small traces of tetrahydrocannabinol in his system, but an insufficient amount to impair his driving ability. Refshauge J, in taking his pleas of guilty into account, sentenced the offender to two years, nine months’ imprisonment, with the first six months to be served in full-time custody and thereafter, 12 months of periodic detention before the remainder of the balance was to be suspended.

185. In Kekalainen, the offender rode his motorcycle with the victim as a pillion passenger while intoxicated. The offender lost control, skidding into a guardrail. The victim was thrown from the motorbike and suffered fatal injuries to her head, chest, and abdomen. The offender entered an early plea, had a criminal history and used alcohol often to hazardous levels, after growing up in a family with similar alcohol issues. A Forensic Medical Practitioner concluded that at the actual time of the collision, the offender’s blood alcohol reading would have been between 0.170 grams and 0.189 grams of alcohol per 100 millilitres of blood. The offender was sentenced by Refshauge J to three years and four months’ imprisonment, reduced from five years, taking into account discounts for the early plea and assistance provided to authorities. The sentencing judge ordered that the first nine months were to be served in full time custody, followed by 12 months by way of periodic detention, and the remainder suspended thereafter.

186. In Wolter, the offender was blinded by the sun while driving at a speed in excess of the speed limit and with methamphetamine detected in his blood; he hit a pedestrian crossing the road, who died at the scene. The matter proceeded to trial by jury and the offender was found guilty of the offence of culpable driving causing death. Aged 22 at the time of the offending, the offender had substance abuse issues and a criminal history, which included prior time in custody. Refshauge J sentenced the offender to four years’ imprisonment with a nonparole period of two years.

187. In Richardson, the offender was found guilty by a jury of an offence of culpable driving causing death and an offence of culpable driving causing grievous bodily harm. The offender was driving a vehicle with three other occupants in the correct lane while significantly affected by alcohol. He lost control of the vehicle, which impacted with a tree on a grass verge. One of the occupants died at the scene, and another suffered injuries amounting to grievous bodily harm while the offender suffered a fractured ankle. Murrell CJ considered that the offences were each of very significant objective seriousness, but that aggravating features such as speeding, showing off, erratic driving or escaping police pursuit were not present. The offender was relatively young, aged 23 at the time of the offences, but had a longstanding substance abuse problem. The offender was sentenced to three years’ imprisonment for the offence of culpable driving causing death and received an overall head sentence of 3 years, 8 months’ imprisonment, with a nonparole period of 1 year and 10 months.

188. In Livas, Mossop J sentenced the offender, relevantly also a professional truck driver but who suffered from sleep apnoea and failed to attend referrals or inform his employer of the possible diagnosis, to a period of 39 months’ imprisonment, with a nonparole period of 27 months for a single charge of culpable driving causing death. The offender in that matter struck the rear of a stationary vehicle carrying a family of four, including a four-year-old child and a two-year-old child, with his ‘tip truck’. The collision caused the four-year-old to be instantly killed from a catastrophic brain injury. The offender made admissions to blacking out. The car carrying the family had been stationary for 16 seconds prior to the accident and visible from a distance of 344 metres. The offender had a criminal history which was significant and did not entitle him to any leniency. The offender entered a plea of guilty. Mossop J noted that the offender’s moral culpability increased by his failure, as a professional driver, to properly address his health issues and the subsequent disclosures, because it posed an unnecessary risk to other road users.

189. In R v Barnett [2016] NSWDC 302, Yehia DCJ (as her Honour was then) ordered a two-year ICO for the offender after determining that his moral culpability was low, and his subjective factors were compelling. In this matter, the offender was found guilty of dangerous driving occasioning death following a jury trial. He was driving a large prime mover truck with an attached trailer at approximately 100km per hour, which was the legal speed limit. The offender was momentarily distracted for a period of five seconds and did not observe a car broken down in his driving lane. Upon seeing the vehicle, he attempted to apply the brake; an expert opined from a distance between 36 and 43 metres from the broken-down car. The offender collided with the car, which conjoined under his truck until it came to rest. The victim, a young woman, was killed.

190. The offender was 43 years old at the time of sentencing and a father to two children, an 18-year-old daughter and a two-year-old son. Following the accident, the offender’s wife became the sole income earner for the family, as a sole practitioner lawyer, and the offender became the primary carer for his son. The evidence before the Court was that if he were to receive a full-time custodial sentence, it would necessitate his son to go into full time care as no family was close by to provide assistance and his mother-in-law was suffering from breast cancer. As a result of the offence, the offender experienced mental health challenges, and commenced counselling. Further, he suffered from hypervigilance as a passenger in a motor vehicle. Although the matter ran to trial, the offender expressed significant remorse. In coming to her ultimate decision, after noting that it was momentary inattention on the part of the offender and considering the low level of moral culpability, the sentencing judge emphasised that not every error of judgement, tragic as its consequence may be, requires incarceration. Concluding, her Honour said (at [110]): The sentence is not intended to detract from the premium the law places on a human life. Instead, it reflects a proportionate sentence having regard to all of the relevant factors.

191. In R v Laidlaw [2022] ACTSC 215, McCallum CJ sentenced the offender two years and three months’ imprisonment, to be suspended after serving three months full-time custody. The offender was driving approximately 10km per hour over the posted speed limit along Commonwealth Avenue in the ACT when he struck the victim from behind, who was driving a wheelchair accessible motorcycle. The force of the collision caused the victim to pitch back and strike her head on the bonnet of the offender’s vehicle, which was examined post-accident to have no mechanical defects. The victim died later at hospital from the multiple injuries sustained. The weather, road and visibility conditions were all good; the offender misjudged the circumstances ahead of him with the prosecution conceding the matter as one of momentary inattention or misjudgement. The offender made admissions to consuming methylamphetamine a few days prior to the incident but was observed by police not to be affected by that substance at the time; this was subject to an additional charge of drive with a drug in his oral fluid. The offender was assessed for an ICO; however, the offender did not engage with the assessment process satisfactorily, in addition to breaching his bail, committing a further drug drive offence, and testing positive for amphetamines and methylamphetamine from the mandatory Corrective Services’ urinalysis. Her Honour ultimately sentenced the offender to two years and three months’ imprisonment, to be suspended after serving three months in full-time custody.

192. In R v Smith [2019] ACTSC 65, I sentenced the offender to a total term of imprisonment of 5 years, taking into account a charge of culpable driving causing death and several other related offences connected with the culpable driving charge. The offender was the driver of a white sedan, which she drove at excessive speed and lost control of. This caused the vehicle to roll a number of times over a dual carriageway. A passenger of the vehicle, a 24-year-old male, was ejected from the vehicle and died as result of a severe head injury sustained in the crash. Immediately prior to the offender losing control, the vehicle had been travelling at no less than 113km per hour, possibly faster. The speed limit was 80km per hour. The vehicle was unregistered and not covered by compulsory third party insurance. The offender was unlicensed and not wearing a seatbelt. Immediately after the car stopped, the offender fled from the scene. The offender later returned a positive result for methylamphetamine.

Culpable driving causing grievous bodily harm

193. In R v Ogle (No 2) [2018] ACTSC 126, the offender was arguing with her partner while driving 139km per hour in an 80km per hour speed limited zone. She entered an intersection and saw the victim’s vehicle at the last moment, attempting to brake and swerve before colliding with the car. The victim suffered significant and permanent injuries, including the undergoing multiple surgeries, one of which removed her right ovary, fallopian tube and 20cm of bowel. The victim’s dog was also killed in the incident. Mossop J held that this was not a case of momentary inattention (at [40]). The offender entered a plea of guilty and had a limited criminal history, but attempted to minimise her actions and victim blame to the author of the PSR. An ICO was considered by the sentencing judge, however, due to continued delays and the lack of engagement with proposed rehabilitation facilities, his Honour held that the offender has missed the opportunity to demonstrate a capacity to take the benefit of such an order (at [48]).The offender was sentenced to 19 months and 7 days’ imprisonment, to be suspended after serving 7 months in full-time custody upon entering into a GBO for a period of 12 months.

194. In R v Fountain [2018] ACTSC 329, Elkaim J sentenced the offender to 24 months’ imprisonment, fully suspended, for a single count of culpable driving causing grievous bodily harm. In that matter, the offender was driving at approximately 90km per hour in an 80km per hour zone, was in some way distracted, and drove through a red light colliding into another vehicle. The victim was seriously injured, requiring emergency surgery and spending one week in Intensive Care. The offender entered a plea of guilty prior to trial but after committal and expressed remorse. The offender had no criminal history and did not use or abuse alcohol or illicit substances.

195. In R v Gordon [2022] ACTSC 130; 100 MVR 157, Elkaim J sentenced the offender to an ICO for three years for a single count of culpable driving causing grievous bodily harm. The facts in the matter amounted to a case of road rage, which saw the victim, a cyclist, collide with the offender’s car. The injuries were described by his Honour as “horrendous” and included a degloving of the victim’s nose, a through and through injury to his cheek, nasal fractures, dental injuries and significant lacerations, among others. He required emergency surgery and skin grafts. The offender had a criminal history, albeit not relevant to the offending, and displayed remorse. His Honour said at [33]: Cases of this type are amongst the most difficult to deal with. On the one hand there is an otherwise decent person who, in a moment’s act of deliberate stupidity, negligently (if unintentionally) causes terrible injury to an innocent person who will suffer the consequences for the rest of his life.

196. The offender in R v Higgins [2020] ACTSC 299; 94 MVR 367 was sentenced by Robinson AJ to an ICO for 34 months and 15 days for three offences of culpable driving causing grievous bodily harm. The offender, a 21-year-old probationary driver was driving an unregistered vehicle 115km per hour in a 50km per hour zone, lost control, hit a fence, and became airborne for almost 30 metres; eventually the vehicle rolled and came to rest on a grass verge. The three passengers, as well as the offender, were all severely injured, and the offender and one of the victim’s required extraction from the vehicle by emergency services. The offender entered pleas of guilty in the Magistrates Court and expressed contrition and remorse in oral evidence during the sentence hearing. He engaged counselling post incident to assist with his emotional and physical suffering. In his decision, his Honour said at [106]: Here, I find that an intensive correction order will address the offender’s risk of reoffending. The fixing of a sentence of imprisonment of more than three years will, itself, address, at least in part, the need for denunciation, accountability and the recognition of the harm done to the victims. In this case there is a low risk posed to the community from the offender. There is a need to prevent crime by deterring other people from committing the same similar offences. I do not believe that the offender himself will embark upon a course of conduct bringing harm to others. There are very good reasons why full-time imprisonment should be avoided in respect of this particular offender if that were possible having regard to the need that any offender be adequately punished in a way that is just and appropriate.

197. In R v Woods [2017] ACTSC 17, Burns J sentenced the offender to an ICO for 15 months for a single count of culpable driving cause grievous bodily harm. The offender, who had a blood alcohol reading of 0.129 grams of alcohol in 100 millilitres of blood, while driving at an excessive speed, had a collision which resulted in grievous bodily harm to a passenger in his vehicle: a lacerated and broken left ring finger and significant damage to the passenger’s right eye. The offender was not recorded but had issues with alcohol, including tendered material from social media showing further significant consumption post offence. The offender entered an early plea.

198. In R v Fanti (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 8 January 2014), the offender entered a plea of guilty to culpable driving causing grievous bodily harm relating to a collision with the victim who was walking on the road beside a line of parked cars. The offender was intoxicated. The victim sustained a deep laceration to the right side of his scalp, severe spinal injuries, a fractured sternum, a fractured wrist, and soft tissue injuries. Surgery was required. The offender displayed genuine remorse, turned himself into police and had no criminal history. The plea of guilty was also early. The matter was subjected to the previous sentencing regime of the ACT and the offender was sentenced to two years, six months’ imprisonment; of which nine months was to be served by way of periodic detention, with the balance being suspended.

199. I take into account the comparable cases in accordance with the relevant authorities mentioned above, noting each case turns on its own facts. Totality

200. A Court sentencing an offender for multiple offences is required to give consideration to questions of totality and to what extent the sentences for different offences should be made concurrent or cumulative.

201. The issue of totality is complicated in this matter by the fact that the two offences stem from the one culpable act. Counsel for the offender correctly conceded that, because the instant matter involves a single course of conduct by the offender and that conduct includes a death to one victim and serious injury to another, some accumulation is warranted and necessary in sentencing to recognise the separate harm caused to the different victims: see R v Towle [2009] VSCA 280; 54 MVR 543 at [98].

202. The application of the totality principle in these circumstances was considered in TG v The Queen [2010] NSWCCA 28; 55 MVR 180. The NSW Court of Criminal Appeal observed at [32] that: … [I]t would have been a serious error had his Honour not imposed partly cumulative sentences for each of the offences. It has been made clear in decisions of this Court that the number of persons killed is an aggravating factor and will result in an increase in the overall sentence imposed: R v Price at [35]; R v Janceski [2005] NSWCCA 288 at [21]-[25]. The sentence for one offence cannot be increased because of the presence of other offences so that the only way in which an increased sentence can be imposed to represent the total criminality is to at least partially accumulate the sentences for each of the offences. Nonparole period and suspended sentences

203. The nonparole period is the minimum period of actual imprisonment that justice requires be served: Lowe v The Queen (1984) 154 CLR 606 at 615. In this jurisdiction, nonparole periods tend to range between 50 and 70 percent of the head sentence, although error is not established by showing that a nonparole period falls outside this range, even in the case of an offender with a minor prior criminal history and no prior experience of imprisonment: Taylor v The Queen [2014] ACTCA 9 at [20]; The Queen v Ruwhiu [2023] ACTCA 18 at [112].

204. In my view, a suspended sentence is called for, rather than a nonparole period to further rehabilitation. I have formed this view in light of the compelling subjective factors, a suspended sentence is more appropriate than a nonparole period.

Section 7 sentencing principles

205. Serious driving offences often involve offenders who are of good character, with good prospects for rehabilitation. Sending people to jail in these circumstances is an invidious process for a Court. Nevertheless, Courts have said on many occasions that those who put lives at risk can expect to receive heavy penalties: See DPP v Gany [2006] VSCA 18 at [35].

206. General deterrence is important in driving offences causing death. General deterrence is important in this case.

207. Counsel for the offender submitted that rehabilitation is a relevant sentencing principle for the offender, noting his Mental Health Care Plan and referral, and prior counselling. The submission was that it is in the interests of the community for the offender to continue his rehabilitation. I agree that rehabilitation is important. But, in this case, an ICO does not incorporate sufficient general deterrence in the process of instinctive synthesis.

208. Counsel for the offender further submitted that there is a lessor need for specific deterrence in this case, as the offence is out-of-character and is very unlikely to be repeated. I accept that submission concerning specific deterrence, but general deterrence is nevertheless of primacy in this sentencing exercise. A suspended sentence is more appropriate than a nonparole period in light of the foregoing concerning specific deterrence.

Statutory and other relevant considerations

209. In sentencing the offender, the Court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to relevant matters above.

210. Pursuant to s 62 of the Road Transport (General) Act 1999 (ACT), upon conviction of an offence of culpable driving, an offender, who is a first offender, is subject to an automatic driver license disqualification period for 12 months. I therefore will not make specific orders in light of the automatic disqualifications that apply from today.

Sentence

211. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and subjective matters of the offender.

212. I note what has been discussed concerning the opaque nature of the instinctive synthesis model of sentencing: See Kirby J in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [129].

213. It is important that I explain my decision not to make an order for an ICO.

214. The offender has been assessed as suitable for an ICO. There are compelling subjective matters, and the offender has expressed remorse.

215. Pursuant to s 11 of the Sentencing Act, consideration may be given to an ICO if the term of imprisonment to be imposed is for more than two years but not more than four years, having regard to further particular factors including the offender’s culpability, the risk posed by the offender to the community, and the level of harm perpetrated by the offence.

216. It was submitted that the purposes of sentencing can be achieved through the imposition of an ICO. An ICO, it was submitted, is still a disposition that is punitive and inflicts significant punishment onto the offender while incorporating elements of rehabilitation: see R v Samani [2016] ACTCA 48; and R v Ngerengere (No 3) [2016] ACTSC 299.

217. Nevertheless in this case, and taking into account the serious nature of the offences, the fact of death and grievous bodily harm with permanent consequences, along with the fact that this was more than momentary inattention and involved a professional truck driver going through a red light after having his “eyes down” for a period of 8 seconds, an ICO would involve, in my view, excessive leniency on the facts of this case and would not properly account for general deterrence.

218. In this context I note in DPP v Clarke [2005] VSCA 2 where the Victorian Supreme Court of Appeal observed at [12] that: … [D]espite that culpable driving is a tragedy for all concerned, including the parents and loved ones of victims and offenders alike, and despite that no amount of imprisonment or other punishment can turn the clock back to the way things might have been, the frightful consequences of culpable driving and the propensity of young people - particularly young men of otherwise good character - to commit the offence, demand that denunciation and general deterrence be at the forefront of the sentencing synthesis. Orders

219. I make the following orders: (1) The transfer charges, CC2021/10184 (drive with a prescribed drug in oral fluid or blood as a first offender), CAN 1695/2022 (negligent driving occasioning death) and CAN 1696/2022 (negligent driving occasioning grievous bodily harm) are dismissed. (2) On the charge of culpable driving causing the death (CC2021/10182), the offender is convicted and sentenced to 2 years, 7 months and 6 days’ imprisonment commencing on 15 September 2023 and ending on 20 April 2026. (3) On the charge of culpable driving causing grievous bodily harm (CC2021/10183), the offender is convicted and sentenced to 1 year, 8 months and 24 days’ imprisonment commencing on 22 December 2025 and ending on 14 September 2027. (4) Those sentences of imprisonment are to be suspended after the offender has served 20 months’ imprisonment upon entry into a Good Behaviour Order for 3 years commencing on 14 May 2025.

I certify that the preceding two-hundred and nineteen [219] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas- Karlsson.

Associate:

Date: 19 September 2023