Zirilli v The Queen (2014) 253 CLR 58 [2014] HCA 2
Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37
Costello v R [2017] NSWCCA 32
Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100
89 MVR 1
Edwards v R [2020] NSWCCA 141
JM v R (2014) 246 A Crim R 528
Source
Original judgment source is linked above.
Catchwords
[1999] HCA 46
Barbaro v The QueenZirilli v The Queen (2014) 253 CLR 58 [2014] HCA 2
Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37
Costello v R [2017] NSWCCA 32
Cvetjovski (Cvetkovski) v R [2019] NSWCCA 10089 MVR 1
Edwards v R [2020] NSWCCA 141
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Markham v Regina [2007] NSWCCA 295
Mitreski v RR v Mitreski [2008] NSWCCA 301
Morabito v Regina [2007] NSWCCA 126
Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39
Obeid v R (2017) 350 ALR 103[2017] NSWCCA 221
Preston v Regina [2011] NSWCCA 2557 MVR 346
R v Jurisic (1998) 45 NSWLR 209[1998] NSWSC 423
Regina v Clampitt-Wotton [2002] NSWCCA 38337 MVR 340
Regina v Craig Besant [2003] NSWCCA 388
Regina v Errington (2005) 157 A Crim R 553[2005] NSWCCA 348
Regina v Gardiner [2004] NSWCCA 365
Regina v Whyte (2002) 55 NSWLR 252[2002] NSWCCA 343
Thornton v R [2020] NSWCCA 257
Wong v The Queen
Leung v The Queen (2001) 207 CLR 584
Judgment (19 paragraphs)
[1]
Solicitors:
Legal Aid NSW - Applicant
Solicitor for Public Prosecutions - Respondent
File Number(s): 2018/003004
Decision under appeal Court or tribunal: District Court of NSW
Jurisdiction: Criminal
Date of Decision: 30 October 2019
Before: Hanley SC DCJ
File Number(s): 2018/003004
[2]
Offences and sentence
The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the aggregate sentence imposed upon him on 30 October 2019 by his Honour Judge Hanley SC (the sentencing judge) in the District Court at Penrith. The applicant pleaded guilty to one offence of driving in a manner dangerous occasioning grievous bodily harm contrary to s 52A(3) of the Crimes Act 1900 (NSW). That offence has a maximum penalty of imprisonment for 7 years. There is no standard non-parole period.
The applicant also pleaded guilty to one offence of cause bodily harm by misconduct in charge of a vehicle contrary to s 53 of the Crimes Act. That offence has a maximum penalty of 2 years imprisonment. There is no standard non-parole period. There is an automatic disqualification of 3 years and a minimum of 12 months from holding a driver's licence.
The applicant received an aggregate sentence of 3 years with a non-parole period of 18 months, commencing 30 October 2019, in respect of those offences. The indicative sentence for the dangerous driving offence was 2 years and 6 months. The indicative sentence for the cause bodily harm by misconduct in charge of a vehicle offence was 9 months.
The applicant relies upon the following grounds of appeal, namely:
[3]
Ground 1 - His Honour erred in finding that the applicant's moral culpability was increased due to his:
[4]
a. actual knowledge of, or recklessness as to the braking deficiencies of his vehicle; and
[5]
Ground 1A - In the alternative to Ground 1 his Honour erred in finding that the objective seriousness of the driving in a manner dangerous offence was increased due to his:
[6]
a. actual knowledge of, or recklessness as to, the braking deficiencies of his vehicle; and
[7]
Ground 2 - His Honour erred in his rejection of the submission that the sentence could be served by way of Intensive Correction Order by
[8]
a. failing to have regard to s 66 of the Crimes (Sentencing Procedure) Act 1999; and
[9]
Ground 3 - The aggregate sentence was manifestly excessive
Before the hearing of the application for leave to appeal against sentence, the Court was advised that Ground 2 would not be relied upon.
[10]
Factual background
The following facts were agreed:
1. In the evening of Thursday, 30 November 2017, the offender loaded his semi-trailer, reg 621 9B IR (Qld), at Tullamarine in Victoria with miscellaneous goods. He drove to Seymour and rested, then departed that location about 2:00am on Friday, 1 December 2017. He drove to Penrith, arriving in the early afternoon of 1 December 2017 where the vehicle was unloaded.
2. At around 2:15pm on 1 December 2017 the offender drove the unloaded vehicle in the southbound lane of the Northern Road heading towards his residence at Holsworthy. At this time, Ms Tayla Richards was driving in the southbound lane of the Northern Road ahead of the applicant in her Dodge Journey 4 wheel drive vehicle.
3. Ms Richards was travelling to a residence on the western side of the Northern Road. When she was about 500 metres from the entry to the residence, she began to slow her vehicle and engaged her right indicator. The Northern Road at this point is a straight section of road with one lane for each direction of travel divided by double and unbroken lines. The speed limit is 80kms.
4. Vehicles travelling in the southbound lane of the Northern Road towards this point approach a slight right-hand curve on a gentle downhill gradient (about two per cent). Ms Richards' vehicle was stopped about 100m past the curve.
5. While her vehicle was stationary, Ms Richards observed the applicant's truck coming down the gradient towards her. The applicant's truck collided with the rear of her vehicle causing it to move into the northbound lane where it collided with a Mazda ute, driven by Ms Dorothea Hawe. Ms Hawe's vehicle was forced off the side of the Northern Road.
6. Ms Richards suffered a perforation to her small bowel, a tear to her liver, a tear to her spleen and a fracture of her left ulna. She underwent a laparotomy to repair damage to her organs, and another operation for further reduction and internal fixation of her ulna. She was discharged from hospital on 20 December 2017.
7. Ms Hawe suffered a fracture of her spine at C5/C6 with minimal displacement. She was treated with an aspen collar for two weeks. She was discharged from hospital on 3 December 2017.
8. The applicant participated in an electronically recorded interview with police. He said he was travelling on the Northern Road and there was "a bit of a gap" between his truck and Ms Richards' vehicle, about one and a half to two car lengths. He said he took his eyes off the road and looked down at his fuel gauge for one or two seconds and when he looked up, he saw Ms Richards stopped in front of him. He hit the brakes and tried to swerve but hit her. He did not recall seeing brake lights or the indicator on Ms Richards' vehicle.
9. The applicant's truck left skid marks on the roadway from a point before the collision to where it stopped after the collision. The truck skidded 44.4m before the point of collision.
10. Analysis using the skid marks and the friction co-efficient of the road surface indicated that the applicant was travelling at a speed of no less than 92km when his truck commenced to skid.
11. The applicant's truck was examined. The prime mover had a lengthy bonnet. An insect deflector fixed to the front of the bonnet prevented the driver from seeing the 14m of roadway immediately in front of the truck.
12. The prime mover was found to have mechanical defects. Defects to the braking system caused the truck to take a slightly longer distance to stop than it would have, had the defects not been present. However, the collision would still have occurred.
13. The collision occurred in daylight and dry conditions. Visibility was good.
[11]
Admissions by the applicant in oral and written submissions in sentence proceedings
The applicant accepted that Ms Richards turned her indicator on at least 500m from the entry to the residence that she was proposing to drive into. It was conceded by the applicant that he did not see the brake light or indicator light.
The applicant submitted that he did not lose control of the vehicle and that there appears to have been a moment of inattention whilst he was driving above the speed limit and at a time when his vision may have been limited by the lengthy bonnet and the insect deflector. It was conceded that there was insufficient space between his truck and Ms Richards' vehicle to allow him to brake and stop in time to avoid the collision.
It was accepted by the applicant that "[i]f it is not a case of momentary inattention the time and distance travelled without attention to the road was a relevant and aggravating factor".
In written submissions the applicant submitted "[t]hat [his] moral culpability [was] at a lower level". There was nothing to demonstrate that there [was] a total abandonment of responsibility. The applicant submitted that the act of momentary inattention was due to him checking his gauges. It occurred in the context of him driving his unloaded semi-trailer above the speed limit and at a distance from the victim's vehicle which did not allow him to stop in a safe manner.
The following evidence was given by the applicant in the sentence proceedings:
"Q. Do you accept that the collision - by your plea you accept that the collision occurred because you weren't travelling at a safe distance behind the vehicle driven by Ms Richards?
A. Yes.
Q. And you accept the evidence is that at the time, you were travelling over the speed limit?
A. Yes I do.
Q. In terms of your journey that day, the facts reflect that you left Victoria at 2am and the collision occurred at 2.15pm?
A. That's right." (T6.26, 25.10.2019)
"Q. ... They reflect that you told the police when you were interviewed about the collision that there was a gap between the semi-trailer that you were driving and the vehicle driven by Ms Richards?
A. That's right.
Q. And you thought it was one to two cars, is that right?
A. That's right, yes.
Q. What did you mean by that?
A. As a truck driver, two car lengths is a space, a car, a space and a car, that's the way a truck driver sees a gap.
Q. But do you accept that notwithstanding your estimate of the gap, it was still insufficient in the circumstances on that afternoon?
A. That's right." (T8.34, 25.10.2019)
"Q. And isn't it the case that when you first saw the car, Ms Richards' car stopped waiting to turn right - sorry, that the first time you saw the car it was stopped waiting to turn right?
A. The first time I saw the car was when I looked up, yes.
Q. And it was stopped?
A. Yes.
Q. And so just to make that evidence clear, you didn't see her car while it was driving along or moving along in front of you?
A. Yeah, there was a fair bit of traffic, we were all moving along at the same time. I looked in the mirrors and I looked down at the gauges and I looked up just like I'm supposed to do, to check everything, make sure there's nothing falling off the trailer because you cart timbers and rubbers and things and I looked up and the car was stopped and I tried to avoid her instantly, I tried to spear off to the left and collided with her, the left hand side of her car." (T11.45-12.10, 25.10.2019)
"Q. But if I was to suggest to you that she'd had her indicator on for about 500 metres before she stopped.
A. No, I didn't notice that.
Q. You didn't notice her car for the 500 metres?
A. I didn't notice the indicator or that she had pulled up in front of me until I saw her stopped. (T12.25, 25.10.2019)
"HIS HONOUR: Q. And paragraph 12 talks about the vehicle having mechanical defects in its braking system. Did you see that?
A. Yes, your Honour.
Q. Did you notice any difficulty of braking during the trip between Melbourne and Sydney?
A. No, your Honour, no.
Q. Had you driven that truck beforehand?
A. Yes, your Honour, yes.
Q. So you regularly drive it?
A. Yes, your Honour.
Q. Were you required to maintain it or alert the owners of it to any defects?
A. I was the owner and I maintained it, yes, your Honour.
Q. So you're the owner, you maintained it, but you weren't aware that it had defects in its braking system?
A. Sometimes over a period of time depending on how heavy the load was and things like the brakes would back off a little bit more than usual, so you would have to stop and tighten the brakes up to adjust them to a full working braking capacity and the load was fairly light and I didn't notice that the brakes had actually come up more than what they had." (T15.2, 25.10.2019)
[12]
Proceedings on sentence
When considering the objective seriousness of the offences, the sentencing judge identified the following factors as relevant to an assessment of the applicant's driving:
1. he was driving a semi-trailer without a load;
2. he had driven that day from Victoria and [un]loaded at Penrith. During the trip he had stopped several times to resecure the load;
3. he had not maintained his log book for the trip as required, identifying the mandatory rest periods;
4. the relevant area of the road had a capacity to allow a driver to see well ahead for some considerable distance;
5. the time the collision occurred was about 2:15pm when there was a considerable amount of traffic using the Northern Road;
6. the conditions were dry and the visibility was good;
7. the braking system on the semi-trailer was deficient to the extent that it would take a slightly longer distance to stop than if the defects were not present. That fact was qualified by the proviso that the collision would still have occurred even if the brakes were fully operational;
8. the vehicle was travelling in excess of speed limit, i.e. 92km per hour in an 80 km zone; and
9. the significance of speed in the circumstances of this accident was emphasised by the fact that although the applicant applied his brakes, the skid marks were still measured for 44.4m from that time until impact.
A number of those factors were commented on by the sentencing judge. His Honour accepted that he could not take into account the applicant's failure to maintain his log book, as indicating that he was not properly rested, since there was no evidence to that effect.
By reference to the applicant's evidence that although he did not see Ms Richards indicating a turn or coming to a stop he had almost missed hitting her vehicle, his Honour inferred that had the vehicle not been speeding, and had the brakes been working to their maximum efficiency, the collision may not have occurred.
His Honour concluded that the actions of the applicant just before the collision, i.e. checking his load, the sides of his vehicle, its speed and the fuel gauge, meant that the accident did not occur because of momentary inattention. His Honour inferred that the combination of those actions just before the applicant became aware of Ms Richards' stationary vehicle was dangerous in circumstances where the truck was travelling 12km/h over the speed limit. His Honour rejected the applicant's submission that "he was not speeding to a significant degree". His Honour concluded that speed was a significant factor because of the degree of inattentiveness by the applicant and the distance between the truck and Ms Richards' vehicle. His Honour regarded the braking deficiencies as significant. This was in circumstances where he was responsible for maintaining the truck and [h]ad noticed no response from the braking of that vehicle during the trip from Melbourne that should have caused him, as an experienced truck driver, to at least exercise a greater degree of care to ensure that the speed limits and the distance between vehicles were highlighted in the management of his truck on a public road.
[13]
THE APPEAL
At the outset of the hearing of the appeal, counsel for the applicant submitted that it was his understanding that the concepts of "the objective seriousness of offending" and "moral culpability" were synonymous. It was for that reason that he had referred to moral culpability in the first ground of appeal. He had done so even though the sentencing judge had not in terms made an assessment of moral culpability. The assessment which his Honour did make was of the objective seriousness of the offending. It was for that reason that the Court allowed the applicant to amend his grounds of appeal to add Ground 1A.
I am of the opinion that the concepts of the objective seriousness of offending and moral culpability are quite different. As was made clear in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]:
"27 Section 54B(2) and s 54B(3) oblige the court to take into account the full range of factors in determining the appropriate sentence for the offence. In so doing, the court is mindful of two legislative guideposts: the maximum sentence and the standard non-parole period. The latter requires that content be given to its specification as "the non-parole period for an offence in the middle of the range of objective seriousness". Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
In contrast, the concept of "moral culpability" is considerably broader than that of the objective seriousness of a particular offence or offending. It includes the objective seriousness of the offending but goes beyond that and also includes matters personal to the offender such as profound deprivation and being raised in an atmosphere of alcohol abuse and violence (Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44]). Generally speaking, subjective considerations which have been recognised by the courts as bearing directly upon the exercise of the sentencing discretion will often, if not always, form part of the assessment of moral culpability.
Since the matter was not fully argued before the Court, I would go no further than to say that moral culpability is a broader concept than the objective seriousness of an offence and may well include that factor together with others of a subjective kind.
[14]
Ground 1A - In the alternative to Ground 1 his Honour erred in finding that the objective seriousness of the driving in a manner dangerous offence was increased due to his:
[15]
a. actual knowledge of, or recklessness to, the braking deficiencies of his vehicle; and
[16]
b. ignoring the reading of the speedometer
The applicant submitted that there was no evidence that he was aware of a problem with the brakes on the semi-trailer. The applicant submitted that no questions had been asked on that issue by the Crown and that the only evidence came from the applicant when answering the following question from his Honour:
"Q. So you're the owner, you maintained it, but you weren't aware that it had defects in its braking system?
A. Sometimes over a period of time depending on how heavy the load was and things like the brakes would back off a little bit more than usual, so you would have to stop and tighten the brakes up to adjust them to a full working braking capacity and the load was fairly light and I didn't notice that the brakes had actually come up more than what they had." (T15.19, 25.10.2019)
The applicant submitted that the effect of that answer was that he had not noticed any problem with the brakes while he was travelling from Victoria to Penrith.
The difficulty with that proposition is that the braking deficiency was an agreed fact, i.e.:
"(12) The prime mover was found to have mechanical defects. Defects to the braking system caused the truck to take a slightly longer distance to stop than it would have, had the defects not been present. However, the collision would still have occurred."
It also needs to be kept in mind that the applicant was aware of a problem with the brakes and he was the person responsible for maintaining them. It follows that he should not have been driving a semi-trailer on busy roads when he knew there was a problem with the brakes. The fact that he claimed not to have experienced any problems on the trip to and from Melbourne is largely irrelevant in circumstances where a defect was known to exist.
This part of Ground 1A has not been made out.
The applicant submitted in relation to the second aspect of Ground 1A, that the applicant gave evidence of checking the "gauges" but at no time during the sentence hearing did he say, or was it put to him, that he did or did not check the speedometer before the accident. The applicant submitted that on that state of the evidence, his Honour's finding that he ignored what was shown by the speedometer, was not open.
This ground is misconceived. It was an agreed fact that the applicant's truck was travelling at a speed 12kph above the speed limit. There were two possibilities open, i.e. the applicant did not look at the speedometer or that he did look but ignored the reading. On either basis, his Honour's finding was open. If he checked the gauges but failed to check the speedometer he was at fault. That of itself would constitute dangerous driving, given the busy road conditions at the time. Alternatively, if he did look at the speedometer but ignored the reading, he would again be at fault.
[17]
Ground 3 - The aggregate sentence was manifestly excessive
The applicant submitted that manifest excess can be demonstrated through the inability to reconcile the ultimate sentence with the findings of objective seriousness. The applicant submitted that the sentencing judge had assessed the objective seriousness of both offences as falling "towards the lower end of the broad range of midrange objective seriousness". The applicant submitted that contrary to this finding, the nominal starting point for the indicative sentence for the s 53 offence was precisely the mid-point (half of two years less 25 per cent equalled nine months) and fractionally below the mid-point for the s 52A offence (half of seven years less 25 per cent equalled two years seven and a half months). The applicant submitted that his Honour made multiple favourable findings in mitigation for him. The applicant submitted that despite these findings, the indicative sentences were consistent with sentences at mid-range, rather than the lower end of the broad mid-range. The applicant submitted that, as a result, the indicative sentences demonstrated that no weight had been given to the matters found in mitigation.
The applicant submitted that while acknowledging the limitations of comparative cases, the sentence imposed on him was more consistent with the sentences imposed upon truck drivers where accidents occasioned death. In support of that proposition, the applicant set out a table of 14 cases from 1997 to 2019 where sentences were imposed upon truck drivers for offences of drive in a manner dangerous occasioning death. The applicant noted that this offence carries a maximum penalty of 10 years and was strictly indictable. The applicant submitted that the sentences were similar to that imposed in this case but for much more serious offending.
[18]
Consideration
In order to succeed on a ground of appeal alleging that a sentence is manifestly excessive, the applicant must establish that the sentence was "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Markarian); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in a context where there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to balance many different and conflicting features: Markarian at [27]; Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34]. Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles and this Court will not interfere in a sentence merely because it may have exercised its sentencing discretion differently: Obeid v R (2017) 350 ALR 103 at [443]; [2017] NSWCCA 221.
There will be a range of possible sentences that could be imposed without error: AB v The Queen (1999) 198 CLR 111; [1999] HCA 46 at [128].
Further "it is only if this Court concludes that no judge properly exercising his or her sentencing discretion could have arrived at the same result that it is able to give any consideration to quashing the sentence and imposing a different one": see Harrison J (with whom Johnson J and Hamill J agreed) in Edwards v R [2020] NSWCCA 141 at [23].
The applicant submitted that a comparison of the sentencing judge's findings in relation to objective seriousness and the indicative sentences nominated reflected a sentence that was manifestly excessive. In support of this, the applicant applied a mathematical process of determining the mid-point of the maximum penalty for each offence minus the 25 per cent discount.
Such a mathematical approach to the assessment of the aggregate sentence ignores the broad principle that sentencing is not an arithmetic process of adding and subtracting for aggravating and mitigating factors, but instead is a process of instinctive synthesis of all the relevant facts and circumstances (Wong v The Queen; Leung v The Queen (2001) 207 CLR 584 at [74]-[76]; [2001] HCA 64; Markarian at [39]).
Contrary to the applicant's submission, a mathematical equation of the sentencing judge's findings in relation to the objective seriousness of the offences with the maximum penalties does not establish manifest excess, nor does it disclose that the aggregate sentence was unreasonable or plainly unjust. In any event, indicative sentences are not themselves amenable to appeal but may be a guide as to whether error is established in relation to the aggregate sentence (JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [40]).
[19]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 25 November 2020
It should also be noted that in an exchange with the sentencing judge, counsel for the applicant conceded that the accident was more serious than one involving momentary inattention (T19.29, 25.10.2019).
His Honour had regard to the guideline judgment in Regina v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. His Honour noted the following aggravating factors in a typical dangerous driving case which were referred to in Regina v Whyte and which were relevant to this accident as follows:
1. the extent of the injuries suffered by the victim;
2. the number of people put at risk, i.e. other road users;
3. the degree of speed which was significant in a semi-trailer exceeding the speed limit; and
4. if in fact the applicant looked at his speedometer when checking gauges, he ignored the fact that he was exceeding the speed limit.
His Honour identified the factors that impacted directly upon the applicant's irresponsibility as follows:
1. his failure to make proper observations and keep a proper look out in respect of the traffic ahead of him demonstrated by his failure to see Ms Richards' indicator when she had stopped; and
2. speed.
His Honour noted that both offences arose out of the same collision and that there were two victims. His Honour discussed moral culpability and assessed the objective seriousness of the offending as follows:
"I assess his moral culpability arising out of his failure to maintain the appropriate attentiveness and to drive at a speed that was dangerous in the circumstances. He failed his duty to other users of the road particularly as he was driving a large truck that when driven at speed must develop considerable mass at the time it struck the other vehicle with considerable force causing substantial damage.
He drove at an unsafe distance from the vehicle in front of him. Even taking into account of what he meant when he spoke to the police indicates the greater distance might be interpolated from the denotative meaning of his words.
I am satisfied both offences fall towards the lower end of the broad range of midrange objective seriousness." (Sentence judgment 10.9-11.4)
His Honour took into account the "appalling" driving record of the applicant in New South Wales and Queensland as disentitling him to any leniency and emphasised the need for the sentence ultimately imposed to have a substantial element of specific deterrence. His Honour noted:
"It would appear from past convictions and fines in relation to offences, particularly speeding, that this has not dissuaded him from driving at a speed above the regulatory limits as on this occasion. However, I do not intend to take those into account as aggravating factors." (Sentence judgment 11.5)
His Honour took into account the early plea of guilty and that the applicant was entitled to a reduction of 25 per cent from an otherwise appropriate sentence to recognise the utilitarian benefit of his pleas.
The sentencing judge accepted that the applicant was genuinely remorseful and had accepted responsibility for his behaviour. His Honour was satisfied that the collision had finally brought home to the applicant the importance of complying with road rules. His Honour noted that the applicant in the course of giving his evidence had directly apologised to Ms Richards who was also in court.
His Honour had regard to the following subjective matters relating to the applicant. He was born in June 1960 and was one of nine children raised in Maroochydore. His childhood was marked by physical abuse and discipline from his strict father. His father, however, was hard working and provided for the family. The applicant left school in year nine and home at the age of 15. He has had a variety of jobs comprising labouring, process work, air craft refueler, tarmac controller, interstate truck driver and welder, which is his current occupation.
At the age of 18, the applicant left Brisbane and moved to Sydney. He spent 10 years in Sydney and returned to Brisbane when he was aged 27. From a young age, he suffered several motorcycle accidents and falls from riding horses. This resulted in physical problems, injuries and medical operations.
The applicant had a long-standing relationship with a Ms Ranson which started when he was aged 28. The applicant is unable to father children and although Ms Ranson had two children from other partners, he treated them and raised them as his own. He has maintained a continuing relationship with these children.
The applicant came to live in Sydney in 2016 after his business collapsed. In 2017, his company was put into liquidation. This was a result of a downturn in the building industry in South Eastern Queensland. He had a relationship with a Ms Rae which lasted for three and a half years, and although that has ended, Ms Rae was in court with him and wrote a letter to the court advising that she was prepared to have him reside at her home as a lodger.
The applicant was diagnosed with Post Traumatic Stress Disorder and his general practitioner has identified a mental health plan for him. The applicant was currently working as a welder but had considerable debts.
A Sentencing Assessment Report assessed the applicant at a low risk of reoffending. In reaching that conclusion, the author of the report noted that the applicant had ceased driving trucks. The applicant was regarded highly by his present employer. The applicant had surrendered his licence to police and had no intention of renewing his truck licence. The Post Traumatic Stress Disorder from which he suffers developed as a result of this collision.
His Honour said:
"I am satisfied he has finally developed some insight into the consequences of breaching regulations of this kind which are designed to protect other users on the road. I am satisfied he has good prospects of rehabilitation and that he has commenced steps towards achieving that goal. I am satisfied in view of the impact this offence has had upon him he is unlikely to reoffend. There are no other mitigating factors I propose to take into account." (Sentence judgment 14.8)
By reference to s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour took into account the following considerations. There was a need for a degree of specific deterrence to be included in the sentence because speeding was a significant part of the offences. His Honour found that general deterrence should also be given emphasis. This was because large heavy vehicles are driven on public roads on a daily basis. This was in a context where other road users were driving less substantial vehicles. The effects of a collision between a semi-trailer and a car were likely to cause significant injuries. His Honour concluded:
"It must be brought home to drivers they are to maintain their road worthiness of their vehicles to the utmost degree and at all times maintain a proper look out. It must be brought home to the drivers of such large vehicles that a failure to recognise and be aware of their duty of care to other users of the road whereby serious injury or death are caused will result in significant penalties. The community demands that such behaviour is dealt with by the imposition of an appropriate and condign penalty." (Sentence judgment 15.7)
His Honour was satisfied that despite the applicant's age and history, there was a need for a slightly longer period to be served in the community to ensure the success of his rehabilitation and to address his Post Traumatic Stress Disorder.
In relation to totality, his Honour took into account that the two offences were due to the same acts and omissions by the applicant. His Honour also noted that there were two victims who suffered injuries of differing degrees of seriousness. His Honour concluded that while there should be a degree of significant concurrency in the sentence, there was still a need for some accumulation.
His Honour disagreed with the submission that an Intensive Correction Order should be made rather than the imposition of a custodial sentence. This was because of the objective seriousness of the offending.
For the purposes of this application, however, it was his Honour's assessment of the objective seriousness of the offending and not his assessment of moral culpability which was challenged.
It follows that the relevant ground of appeal is Ground 1A.
Given the applicant's evidence to the police and in the sentence proceedings, that he checked everything that he was supposed to check, this must implicitly have included the speedometer which in the circumstances, i.e. a busy highway, was the most important of all the gauges. It was certainly more important than the fuel gauge.
It follows that in the circumstances of this case it was open to his Honour to find beyond reasonable doubt that if the applicant did not look at the speedometer, he should have, and if he did look at the speedometer and did nothing, the only inference available is that he must have ignored the reading.
This aspect of Ground 1A has not been made out.
Here, neither the indicative sentences nor the aggregate sentence were so unreasonable or plainly unjust as to constitute a manifestly excessive sentence. This is supported by following features:
1. the maximum penalties and guideline judgment of Whyte which provide a guide or indicator;
2. the sentencing judge's finding that "both offences fell towards the lower end of the broad range of mid-range objective seriousness";
3. the sentencing judge's assessment of objective seriousness of the offending arising out of his failure to maintain appropriate attentiveness, driving at an excessive speed which was dangerous in the circumstances, failure in his duty to other road users as a driver of a large truck and driving at an unsafe distance;
4. the significant extent of the injuries suffered by both victims and the need for some degree of retribution;
5. the extent of the inattention by the applicant in circumstances where the victim activated her indicator 500m before her destination and the applicant did not see this despite the clear visibility and good driving conditions;
6. the need for specific deterrence in light of the applicant's "appalling" driving records in New South Wales and Queensland and his admission that he had failed to comply with regulatory requirements in respect of his logbook during the journey;
7. the need for general deterrence, particularly in relation to drivers of heavy vehicles, and recognition that general deterrence is usually given primacy over considerations that are personal to the offender including subjective features such as remorse (R v Jurisic (1998) 45 NSWLR 209 at [228]; [1998] NSWSC 423);
8. a degree of notional accumulation was required to reflect the principle of totality and no challenge has been made by the applicant to the notional accumulation in fixing the aggregate sentence; and
9. the sentencing judge made a finding of special circumstances with the non-parole period constituting 50 per cent of the total sentence.
The applicant, while acknowledging the limitations of comparative cases, provided a table of cases involving truck drivers sentenced between 1997 and 2019 for the offence of dangerous driving occasioning death contrary to s 52A(1) Crimes Act.
In Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83]:
"83 Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v The Queen, 'that history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court."
In relation to the cases included in the table by the applicant, none is sufficiently comparable with the applicant's case such as it would demonstrate that his sentence was unreasonable or plainly unjust. It is noted that the cases relate to an offence contrary to s 52A(1) for offences involving death and not the two offences for which the applicant was being sentenced. Also, the first four cases listed pre-date the guideline judgment of Whyte. In relation to the remaining cases, the following features distinguish them from that of the applicant:
Regina v Clampitt-Wotton [2002] NSWCCA 383; 37 MVR 340: The offender was a truck driver with no prior convictions and a minor traffic record which was treated as having no significance. He had a favourable subjective case and expressed remorse. He failed to maintain a proper lookout and his truck collided with a woman's car, killing two of her children and occasioning serious injuries to two further children. There was no excessive speed. (Following a Crown appeal, the sentence was 4 years with a non-parole period of 2 years).
Regina v Craig Besant [2003] NSWCCA 388: The offender fell asleep and his truck collided with the victim's car killing two passengers following a period of erratic driving over 50km. The offender's drug use was an aggravating feature. There was no excessive speed above the speed limit, but it was considered too high in the weather conditions. The offender had a bad traffic record, but not so bad for a truck driver. The sentence was 6 years with a non-parole period of 3 years and 6 months.
Regina v Gardiner [2004] NSWCCA 365: The offender's truck collided with the rear of the victim's utility killing the driver. The offender was under the influence of double the normal therapeutic dose of methamphetamine and involved a high degree of moral culpability. There was no excessive speed and the offender had compelling subjective features (The sentence was 4 years with a non-parole period of 2 years and 6 months following a verdict of guilty).
Regina v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348: The offender's truck collided with a stationary car at an intersection causing multiple collisions and resulting in the death of one driver and injuries to another. There was no explanation for the collision, no medical issue, drug use or excessive speed. The offender had an excellent driving record, particularly in view of his work as a truck driver, and was deeply remorseful and had assisted police in relation to an unrelated armed robbery (The sentence was 2 years and 9 months with a non-parole period of 1 year and 6 months).
Morabito v Regina [2007] NSWCCA 126: The applicant was driving his truck 10km below the speed limit but due to inattention, did not observe a stationary vehicle and collided with it, causing serious injuries to the occupant of one vehicle and the deaths of two others. He was a person of otherwise good character and had expressed remorse (The sentence was 3 years and 3 months with a non-parole period of 1 year and 3 months, after trial).
Markham v Regina [2007] NSWCCA 295: The applicant collided with the victim's vehicle killing him after driving through a red traffic light. There was no excessive speed, no drug use and no mechanical defect, but it was held that fatigue had played a part in the applicant's mistaken belief that the light was green. The applicant was 28 years old and had an old criminal record which was described as minor and of no present significance. There were several entries on his traffic record (The sentence was 4 years with a non-parole period of 2 years and 3 months).
Mitreski v R; R v Mitreski [2008] NSWCCA 301: The offender was convicted after trial in relation to a collision which killed the two occupants in the victims' vehicle. The offender was driving at an excessive speed, at least 20km above the speed limit. There were no mechanical defects and he had no prior record. The offender's criminality was assessed as being only slightly below mid-range (Crown appeal in which the sentence was increased to 3 years and 4 months with a non-parole period of 2 years and 4 months).
Preston v Regina [2011] NSWCCA 25; 57 MVR 346: The offender drove his truck at a speed of 25km and failed to give way at a t-intersection as he turned and collided with the victim's vehicle. There was a partial blind spot at the intersection. The victim was not wearing a seatbelt and was partly ejected from the vehicle. There was no involvement of drugs, alcohol or fatigue and the truck was roadworthy. It was held that the offender did not sufficiently slow his vehicle to enable him to stop at the intersection. The offender was a person of prior good character, had a remarkably clean driving record considering his career as a truck driver and had other favourable subjective circumstances (The sentence was reduced to 3 years with a non-parole period of 1 year and 6 months).
Costello v R [2017] NSWCCA 32: On appeal, the applicant's sentence was reduced to 3 years with a non-parole period of 1 year and 14 days. This followed the receipt of fresh evidence relevant to the question of hardship on family members, in respect of the unexpected diagnosis of terminal cancer in the offender's partner and mother of their two young children. The offender's truck collided with the deceased's bicycle as two lanes merged and due to the aggressive manner of the offender's driving he did not see the deceased until the last second. There were no other aggravating features such as speed or fatigue, nor evidence that a number of people were put at risk. The offence was found to fall below the mid-range of objective seriousness. The offender had a poor driving record in both New South Wales and Queensland, including offending after the incident.
Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100; 89 MVR 1: The offender's truck veered into oncoming traffic, colliding with the deceased's vehicle which was travelling in the opposite direction. While there was a level of methylamphetamine in the offender's blood, there was insufficient evidence that it impaired his driving ability. Instead, his inattention to the responsibilities as a driver of a heavy vehicle was considered to have caused the offence. The offender had a minor criminal history but the offence was aggravated by the breach of conditional liberty (after trial, sentence of 3 years with a non-parole period of 2 years).
In Thornton v R [2020] NSWCCA 257, this Court recently considered an appeal in respect of a sentence in relation to two offences of dangerous driving occasioning grievous bodily harm contrary to s 52A(3)(c). The offender was sentenced to an aggregate term of 3 years and 8 months, with a non-parole period of 2 years. The indicative sentences for each offence after application of a 25 per cent discount for a plea of guilty were 2 years and 1 month and 2 years and 7 months. The driver of the vehicle, while not a professional truck driver, collided with a stationary police car, injuring two police officers who were standing outside their vehicle setting up an RBT. The fact that the victims were police officers was not taken into account as an aggravating factor pursuant to s 21A(2)(a) Crimes (Sentencing Procedure) Act 1999.
The applicant in Thornton was not speeding but was found to have been inattentive to his responsibilities as a road user as a result of looking at his mobile phone for a period of 300m, or 10 to 20 seconds prior to the collision. He had also been using his phone earlier in his journey. The injuries to the victims were extensive and required substantial medical attention, including a through knee amputation in relation to one and the insertion of a titanium rod from knee to ankle for the other. There was also permanent scarring, psychological impacts and impact on employment and quality of life. The applicant was 23 years of age, of prior good character and was found to be remorseful and with good prospects of rehabilitation. His moral culpability was assessed as high and the accident was not caused by momentary inattention or misjudgment.
It follows from the above that none of the cases in the table and discussed above demonstrate that the aggregate sentence in this matter is unreasonable or plainly unjust. It also follows that the aggregate sentence has not been shown to be manifestly excessive.
The orders which I propose are:
1. Leave to appeal against sentence is granted.
2. The appeal against sentence is dismissed.