31 For the Director it was conceded that the circumstances of this matter involved a low level of culpability. However, it was urged that the Court should place emphasis on the consequences, not the level of culpability, because the relevant statutory provision was created in order to fill the gap arising from the culpable driving and dangerous driving provisions. That said, as was argued by Mr Priest for the respondent, such an approach fails to take account of the history underlying the relevant statutory provisions. It was put for the Director that, because the circumstances of these types of offences can vary so much, there was no reason why this case could not be an appropriate vehicle to establish a position with respect to general deterrence, even though moral culpability was low. Conveniently, the relevant principles as adverted to by Neave JA in her reasons were dealt with in the New South Wales authority of R v Whyte.[10] I respectfully adopt the reasons for judgment stated by Spigelman CJ in that authority.
32 In the course of argument, Mr Priest highlighted the application of the provisions of s 5(1) of the Sentencing Act 1991. Drawing upon those five criteria, I make the following observations. Firstly, in this case, in my view, it would not be just to punish the respondent as sought by the Director. To do so would fail to take account of the relevant mitigating circumstances and the low level of culpability.
33 Secondly, as to deterrence, specific deterrence does not arise for the reasons described by the sentencing judge and as adverted to by Neave JA in her reasons. While general deterrence is important, the circumstances of this particular case, including the slight, short period of inattention or falling asleep by the respondent, lead to a different approach with respect to general deterrence, as was stated in Whyte and now by Neave JA in her reasons.
34 Thirdly, it is clear on the material, both before the sentencing judge and still before the Court, that the rehabilitation of the respondent would not be facilitated by a custodial sentence.
35 Fourthly, as to the matter of denunciation of conduct of this type, there can be no doubt that, arising from the parliamentary intent underlying the legislation and the statements set out by Neave JA, these types of offences are serious. Indeed, this Court has stated more than once in culpable driving cases the approach that should be taken to denouncing inappropriate driving conduct on the road.[11] To some extent, similar approaches can be applied to this type of offence.
36 Fifthly, there is the criterion of protecting the community from the offender. For the reasons stated by Neave JA, such circumstances do not arise here. As already observed, it was conceded for the Director that this matter involved the lower end of the spectrum of offences of this kind.
37 Having considered the matter and the arguments put before the Court, and applying the principles with respect to Director's appeals, in my view it could not be said that there was anything about the sentences imposed below that would shock the public. For the reasons stated by Neave JA, therefore, I would dismiss the appeal.