DPP v Walton

There is no doubt that the offender looked at the oncoming traffic. He was able to tell police that the red car had P-Plates, which was accurate. He noticed that the red car was turning left. The offender was not in a hurry, he was not speeding, and his driving was otherwise unremarkable. He simply did not see the motorcycle.

It is difficult to understand how the offender could have failed to see Mr O’Neill. The offender was in an elevated position in his truck giving him a good view of the traffic coming towards him. This part of Southern Cross Drive has a slight curve in it so vehicles travelling west which are behind other vehicles are visible to drivers travelling east. The topography of the roadway is such that the offender could have seen the motorcycle for many seconds and from a considerable distance before he turned.

Perhaps most importantly, I am satisfied beyond reasonable doubt that the motorcycle had its headlight illuminated.

The only possible explanation for the offender’s failure is that he was concentrating on the red car to the exclusion of other traffic, and that the black motorcycle was, once the red car had turned into the lane into Beaurepair Crescent, in front of a black car. But had the offender kept a proper lookout, he would have seen the motorcycle and easily so.

As a result of the events I have just described, the offender was charged with an offence of culpable driving causing death. After a short jury trial in which there was little dispute about the facts, the offender was acquitted of that charge but found guilty of the statutory alternative, negligent driving causing death.

It is now my task to sentence him for that offence.

The maximum penalty for negligent driving occasioning death is 200 penalty units, two years’ imprisonment, or both. The offence also carries an automatic licence disqualification of nine months for a first-time offender.

As I have already said, I am satisfied beyond reasonable doubt that Mr O’Neill on his motorcycle was in front of the red car. I make this finding primarily on the basis of the footage from a bus which, although not easy to interpret, suggests after repeated viewing that that is the case. It is also consistent with what a witness, Ms Dyer, said.

In any case it really does not much matter whether the motorbike was in front of or behind the red car. That is because on either version the essence of the offender’s criminality was that the offender was focused on one aspect of the approaching traffic, namely the red car, to the exclusion of other important things which he needed to notice in order to drive safely.

Even if Mr O’Neill was behind the red car and thus in front of a black car, the fact that, as required by regulation, his motorcycle headlamp was illuminated would have made Mr O’Neill and his motorcycle easy to see had the offender’s attention not been focused on the red car to the exclusion of other traffic. After all it was “not dark” according to one witness, and “still daylight” according to another. Whichever version of events is the accurate one, whether the version advanced by the prosecution or that advanced by Mr Ginges, the offender was negligent to a significant degree.

A number of Mr O’Neill’s family and friends prepared victim impact statements. They were read aloud in court. It was impossible not to be moved by the eloquent and heartbreaking statements of the harm which the offender’s criminal behaviour has caused. Mr O’Neill’s death has left an enormous hole in the lives of many people - a hole which will never be filled. He was a kind and caring man who was loved and who will be deeply missed. He was only 47 years old and had many years of happy life to look forward to. His family and his friends, in particular his young daughters, were entitled to expect that he would be with them for years to come. Their overwhelming sadness is manifest.

No doubt yesterday, being the anniversary of Mr O’Neill’s tragic death, was a poignant day of remembrance for many people.

The harm that the offender’s conduct has caused is obvious to everyone, including the offender himself. He has struggled with his mental health for many years and the consequences for him and his family of his wrongdoing are significant as well. The offender understands deeply what he has done and the harm he has caused. This has led to a significant worsening of his mental health, to the extent that he recently spent five weeks in hospital with suicidal ideation.

Mr O’Neill’s family and friends are likely, and justifiably so, to be unsympathetic to the offender’s position. But one of the matters that I am required to consider in assessing the appropriate sentence to impose upon the offender is the extent of his remorse. I am satisfied that the offender is profoundly remorseful.

Consistent with his remorse, the offender offered to plead guilty to the offence of negligent driving causing death at a very early stage of the criminal proceedings against him. The prosecution did not accept that offer. It was never withdrawn until the first day of his trial. It would have been possible for the offender to plead not guilty to culpable driving causing death but guilty to the statutory alternative of negligent driving causing death at trial, but, as was made clear to me, the prosecution would not have accepted that plea in full satisfaction of the indictment.

The trial which followed was longer than it would have been had the offender pleaded to the statutory alternative, but only to a very minor degree. I was required to direct the jury about the elements of the alternative charge, but that was about it.

Discounts for pleading guilty are given because of the utilitarian benefit to the criminal justice system that such pleas bring. The offender should be entitled to a significant discount for offering to plead to the offence for which he was ultimately convicted, an offer which was rejected by the prosecution. In such circumstances the sentence I will impose upon the offender is approximately 22% less than it would otherwise have been.

The prosecution helpfully provided me with references to four cases where offenders have been convicted of the offence of dangerous driving causing death. They were The Police v Alfaro [2025] ACTMC 15, The Police v Hutchison (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Cook, 4 August 2022), R v Chancellor [2019] ACTSC 191 and R v Hamdan (No 3) [2022] ACTSC 326.

It is not necessary to refer to the facts of those cases. It is sufficient to note that in each case the offender was convicted and sentenced to imprisonment but was not required to spend any actual time in custody. In three of the cases, the sentence of imprisonment was suspended and in the fourth the sentence of imprisonment was ordered to be served by means of an intensive corrections order.

I am required to consider those cases in determining what sentence to impose upon the present offender. Indeed, it is an important aspect of sentencing that judges are aware of other sentences imposed by other judges. A judge is not entitled to ignore the sentences imposed for similar offenders and offences.

Consistency in sentencing is important and it should never be the case that the sentence imposed in a particular matter is likely to depend on the particular judge doing the sentencing. It is important therefore that I take account of the fact that it seems that sentences for offences of this type in the ACT are such that, although a sentence of imprisonment is ordinarily imposed, it is invariably, or at least usually, the case that no actual prison time need be served.

Presumably guided by the comparative cases to which it referred, the prosecution, while seeking a sentence of imprisonment, did not suggest that such a sentence should necessarily involve actual custody.

Mr Ginges submitted that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) had not been crossed. In my view it has. Notwithstanding the subjective features of which the offender is entitled to rely, especially his profound remorse and the consequences for both him and his family, I am satisfied that the principles of general deterrence, denunciation, and recognition of harm require that a sentence of imprisonment be imposed.