Lawler v Regina

Court of Criminal Appeal (NSW)|2007-03-05|Before: McClellan CJ, Bell J, Price J, Clellan CJ

The applicant had collected the load from Sydney and was in the process of returning to Newcastle as the load was due for delivery the following day.

At around 5.45pm he drove his vehicle north along the F3 Freeway. Upon reaching the descent to the Mooney Mooney Bridge, he encountered heavy traffic which was moving slowly. All three lanes of northbound traffic were moving at about 10-20 kmph. The traffic had slowed due to a minor collision occurring on the bridge within the southbound lanes. Although this collision did not affect the traffic flow for northbound traffic, drivers were slowing down to view the scene.

As the applicant approached the slowed vehicles he was unable to slow his vehicle.

At the time the applicant was travelling in lane one. He then entered the western break-down lane where it is estimated he overtook approximately 100 vehicles contained within all three northbound lanes.

Upon reaching the entrance to the bridge, the break-down lane ended. He then merged his vehicle into lane one, realising at this time a collision was inevitable.

The front portion of the applicant's prime mover collided heavily with the rear portion of the deceased's, Ann Parker's, vehicle. This vehicle was a silver Hyundai Excel registration number ANN-282. The Hyundai became wedged under the front of the prime mover where it was forced forward approximately 50 metres, colliding with numerous other vehicles.

Eventually, the Hyundai became free where it came to rest in lane two facing in a generally easterly direction. Almost immediately the Hyundai with Mrs Parker still inside burst into flames, completely destroying the vehicle and incinerating Mrs Ann Parker.

The truck continued on for approximately a further 350 metres. During that distance it collided with another 33 vehicles, before the front portion collided heavily with the rear of a grey Holden Utility XQD-428. This vehicle was overridden by the front of the prime mover and forced forward some distance.

The heavy combination came to rest in lane three in collision with the centre concrete barrier, with the majority of the Holden Utility underneath the front of the prime mover.

As a result of the collision, grievous injuries were occasioned to two drivers, Joy Noble and Stephen Connell, and many other drivers/passengers sustained minor injuries and damage to their motor vehicles. A trail of destruction was left behind, some witnesses describing the scene as looking like 'a war zone'.

Mrs Noble suffered fractures to her left wrist, soft tissue damage to her left and right shoulders and neck, left knee, right wrist, right arm, upper right thigh, lower right leg and abdomen. She was airlifted to Royal North Shore Hospital from the collision site. She was later admitted to theatre where she underwent an operation to realign her left wrist.

Mr Connell suffered serious internal injuries and was also airlifted to John Hunter Hospital. He remained in hospital for 5 days having sustained fractures to his sternum and ribs, head pain and lacerations to his legs.

Police observed that the collision site extended the entire length of the bridge (approximately 450 metres) and that traffic in the northbound lanes had been completely blocked by the collision. The line of stationary vehicles extended at least 3 kilometres from the commencement of the bridge.

The police asked the applicant at the collision site what happened and he replied: "I came over the hill about 80 and everyone was stopped gawkin at the prang, I pulled it left"

He was then asked, "What happened to your brakes, were they working?" And he replied: "Sort of, not really. I need some liners in a few of them."

Police from the Engineering Investigation Section ascertained upon examination that the braking system for the prime mover and trailer combination was dramatically reduced. There was only one brake on the prime mover and one brake on the trailer that had the potential to offer braking for the vehicle. The remaining ten brakes on the prime mover and trailer combination could not lock or retard the wheels and as such would not assist in braking. The truck and trailer were generally in poor condition due to lack of maintenance. This was evident from the poor condition of brake components, lack of adjustment to brakes, a broken front axle U-bolt, cracks in the trailer chassis rail, exhaust brake air leaks, wiring damage and worn tyres.

The applicant participated in a record of interview (ERISP) at Gosford police station during which he said he was the owner of the truck and trailer which he was aware was not registered and had a false number plate on it. He knew the braking system "wasn't real crash hot….they work but not very good". He had known they were not working properly since the beginning of the week but thought that was just on the trailer. The applicant said that the braking system was connected (between the prime mover and trailer) and the poor braking ability of the trailer affected his ability to stop 'a fair bit'. He said he did the maintenance on the truck himself. He was aware that there were tyres which needed changing. There was one tyre that was basically completely bald and the condition of others was not much good. He said he knew (prior to the collision) it was a dangerous act to drive the vehicle with at least 18 tonne on it with the brakes in that condition and with defective tyres.

Investigations revealed that both the prime mover and the trailer were unregistered and uninsured.

At the time of the collision the prime mover displayed registration number TFK-199. This registration plate belonged to a Hino table-top with the registration expiring on 11 October 2000.

The trailer displayed registration plate number L-88889. This plate belonged to a 1999 box trailer owned by the applicant. The registration of the box trailer expired on 23 March 2005. Subjective circumstances 12 The applicant was born on 11 September 1959 and was aged 45 years at the time of the offence. Evidence of the applicant's subjective circumstances was put before the Judge by way of the applicant's statement, a pre-sentence report dated 18 July 2005, a report of a psychologist Jennifer Hadden and the oral evidence of the applicant himself. Statements were also tendered from his mother and sister. A number of references were also before the Judge. 13 The applicant obtained a heavy vehicle licence when he was 18 years old and drove trucks for his father, doing deliveries in and around Sydney. He purchased his first prime mover and trailer in 1988. Because he had been driving trucks for most of his adult life, he was familiar with truck mechanics and did the regular servicing on the truck himself. In his statement, the applicant detailed the financial pressure he was under at the time of the accident. Ninety per cent of his work came through his brother who had experienced a slump in his business for the six months prior to the accident. As a consequence, the amount of money he was receiving was reduced. With maintenance costs maintained at the same levels, he began to feel the financial pressure. He stopped registering his truck and paying insurance about twelve months prior to the accident. The applicant accepted that the accident was his fault and expressed his remorse. 14 A driver licence was first issued to the applicant on 8 October 1976. His traffic record which reveals numerous driving offences is to be considered in the context of a career as a truck driver. 15 In his remarks on sentence (at pp 3-4) his Honour summarised the applicant's subjective circumstances: "Subjectively, the offender is now 46 years of age, he has committed numerous traffic offences in a career as a truck driver but has never served a prison sentence. His traffic record of course is a matter to be taken into consideration not to increase his sentence but in relation to the likelihood of his offending again. I feel that I am able to find that he would be unlikely to offend again on the facts of this case and that record. He will also as a result of these convictions cut himself off from the only occupation he has ever followed. I accept the history he gave as to his education to year 10, and growing up in a family where his father had a trucking business which was ultimately taken over by his brother, then at 18 getting a licence and beginning to subcontract to his brother, and ultimately driving for himself. Apparently this was not successful and he was struggling to keep afloat. Ultimately he allowed his truck to become unregistered and to fall into disrepair because, he said, of the lack of funds. However he continued to drive the vehicle. I have read the report of psychologist Jennifer Haddon (sic) and her summary. I accept the fact that he is contrite and remorseful. He entered his pleas at the earliest time and is entitled to the full utilitarian discount. He has been forthcoming to the police and truthful to the police in their investigations right from the start. He has had problems with amphetamines and alcohol but not at the moment. There is no suggestion that he was in any way affected by alcohol or drugs at the time of the accident. He has had a number of relationships, the present one extending over a period of sixteen years and has a son from that relationship, Jacob, aged six. His history regarding children and stepchildren is set out in exhibit D1. His present partner describes him as a good father, and partner, and there is a strong, stable and open family life. Exhibit CA. A daughter, Nicky Priestly, aged 17, who lives with the offender, is presently being treated for Hodgkinson's Disease. It is clear that there is a strong family bond within the family and that the offender is well regarded within the community. Exhibit D4. I take all that into consideration." Dealing with Appeal

16 The Notice of Appeal identifies two grounds, namely:

Ground one : The sentences imposed in their total effect are in all the circumstances manifestly excessive.

Ground two : Some other and less severe sentence is warranted in law and ought to have been passed. 17 Although the Notice of appeal identifies two grounds there is in reality one complaint which is that the sentences imposed in their total effect are in all the circumstances manifestly excessive. 18 The Judge when sentencing the applicant said (ROS at 2): "The facts have been fully set out in the statement of facts, C1, and I do not propose to elaborate on them other than to say that the offender, with full knowledge of the braking defects in his semi-trailer truck and knowledge of the condition of the tyres, elected to drive it to Sydney and to load it with approximately 18 tons (sic) of freight." (emphasis added). 19 The applicant contends that the Judge erred in finding that he had "full knowledge" as it imputes to him total knowledge of the state of the braking system and tyres disclosed by the subsequent police examination. Such a finding was not open on the evidence, the applicant contends, and was contrary to the state of his knowledge admitted in the ERISP. The finding of total knowledge, the applicant argues, places the degree of moral culpability at the latter (upper) end of the spectrum when the evidence did not justify a finding that he was somewhere within the range.

20 Should his Honour have intended to convey in the passage quoted above that the applicant had total knowledge of the braking defects discovered upon subsequent inspection, it would have been wrong to do so. The applicant's admissions (in particular see ERISP QQ 39 - 48) were confined to knowledge that the braking system was "not very good" in the prime mover whereas the police inspection revealed that the defects in braking extended to the trailer. The applicant did say that he knew prior to the collision it was dangerous to drive a heavy vehicle with at least 18 tonne on it with the problems with the brakes and tyres about which he had told the interviewing police: see ERISP Q 295. 21 A fair reading of the ERISP, the applicant submits, discloses a belief that, while the braking system had faults, it essentially worked and points to QQ 41, 44. That submission to my mind understates the applicant's comprehension of the insufficiencies of the vehicle he was driving. During the ERISP he was asked: "Q47. ….with such a, a load on the back, with the, the poor braking ability of the trailer….. A. Yeah Q47. ….how does that affect the, the driving ability of, of your load, how, in relation to the stopping distance……… A. Stopping, fairly, well, yeah, probably, well, a fair bit, 'cause that's more, you know, that's half the braking capacity of the truck, so, yeah, so, a fair bit. Q48. Right. Do you think it was a dangerous thing to do to drive, drive the vehicle with the brakes in ……… A. Yes, it was, yes. Q48. …….Condition? A. Yes." 22 Later on during the ERISP the applicant was asked: "Q146. So, how did you know it was only the, the trailer brakes? A. 'Cause I, well I noticed it had been not stopping and I've looked underneath the trailer at the trailer brakes, noticed that the, the linings needed replacing…………." 23 And "Q179. But, you, you as an experienced truck driver realised that there…… A. Yeah. Q179. ……was a problem there…….. A. Yeah. Q179. ……the brakes weren't pulling you up properly? A. Yes." The braking systems of the prime mover and trailer were connected. 24 It seems to me the word "full" in the remarks on sentence quoted above was used by the Judge to convey the applicant's knowledge of the brake defects. I do not think that his Honour intended to attribute to the applicant total knowledge of the defects in the braking system and in the tyres. In any event, his Honour's assessment of the moral culpability of the applicant was not confined to the extent of his knowledge of the defects in the vehicle.

25 The Judge said (ROS at 5): "Objectively, the conduct of the offender on the occasion leading to these offences is most serious. This offender is one who, with knowledge that the semi-trailer was, by his own admission, dangerous, with defective brakes, was prepared to and did take it to Sydney on the F3, load 18 tons (sic) of freight and start to drive back to Newcastle on Friday about 4pm. This was at a time when the road would have carried a large amount of traffic. He knew the road so he was well aware of the gradients it contained. He was a disaster looking for a place to happen and happen it did. His conduct in behaving in the way that he did showed a complete disregard for the safety of other people whom he knew would at the time be travelling on the road, and shows a high degree of moral culpability." 26 His Honour's assessment of moral culpability properly included the applicant's knowledge of braking deficiencies of the vehicle, the heavy load being carried, the extensive gradients on the freeway and the large volume of traffic likely to be encountered on a Friday at 4pm. The Judge, in my view, correctly described the moral culpability of the applicant as being of a "high degree". 27 The applicant submits that the sentence imposed for manslaughter is significantly beyond the range of sentences imposed in cases of this type which is complicated by the Judge having effectively sentenced upon a 'pre - Pearce' basis and sentenced for manslaughter on a totality basis. His Honour, it is contended, has addressed the sentence for manslaughter as a whole by imposing in effect notional, symbolic sentences for the offences of dangerous driving occasioning grievous bodily harm on the basis that the overall sentence deals with a total criminality. 28 The sentence imposed for count 2 was a fixed term of two years and for count 3 a fixed term of eighteen months. Each sentence was expressed to be wholly concurrent with the non-parole period of eight years and balance of term of two years eight months for the count of manslaughter. The applicant acknowledges that the Judge may have accumulated the sentences on the dangerous driving counts and a total partial accumulation of not more than twelve months would be consistent with the principle expressed by this Court in Regina v Janceski [2005] NSWCCA 288 and Ian Gobbet v Regina [2006] NSWCCA 46. 29 In Gobbet, Barr J with whom Mason P and Howie J agreed said [at 18]: "As this Court observed in R v Janceski [2005] NSWCCA 288 where a court is sentencing for multiple offences arising out of a single criminal act, such as a count of driving as here, it is erroneous to impose concurrent sentences, each aggravated by consideration of the multiplicity of consequences. See also R v Tadrosse [2005] NSWCCA 145. The proper approach is to fix a sentence for each offence, without regard to the discrete effects of other offences, and then decide to what extent if any there should be accumulation in order to produce an overall result that reflects the totality of criminality: Pearce v The Queen (1998) 194 CLR 610." 30 The Judge's sentencing remarks indicate he was mindful of the obligation to fix an appropriate sentence for each offence and then consider the questions of cumulation or concurrence as well as totality: see Pearce at [45]. His Honour when rejecting the Crown's contention founded on s 21A(2)(m) Crimes (Sentencing) Procedure Act that an aggravating factor to be taken into account was that the offence involved multiple victims remarked (ROS at p 4): "….and as to [(m)], the offender will be sentenced on three separate counts, each with a single victim."

The Judge subsequently determined he did not believe that "..in light of the circumstances this is a proper case to accumulate sentences" (ROS at p 6). 31 There is nothing to indicate in his Honour's sentencing remarks that he inflated the sentence for the manslaughter by having regard to the effects of the dangerous driving offences nor that he had sentenced on a totality basis. The Judge was plainly aware that the maximum sentence for manslaughter was twenty five years whereas it was seven years for counts two and three. It was open to his Honour to determine that the counts other than the manslaughter be concurrent. 32 The applicant contends that a finding that the Judge did not sentence on a totality basis increases the complaint of manifest excess in the sentence for manslaughter. This sentence, it is submitted, was on its face a very heavy sentence for "motor vehicle manslaughter" which will be apparent if regard is had to comparable sentences. The applicant points to the plea of guilty and to the undiscounted starting points of the sentence. 33 The Judge said that the applicant entered his pleas at the "earliest time and is entitled to the full utilitarian discount" (ROS at p 3). His Honour was referring to the utilitarian value of the plea of guilty attracting a discount at the top of the range of 10-25 per cent: R v Thomson; R v Houlton (2000) 49 NSWLR 383. At the conclusion of his sentencing remarks his Honour was asked by the Crown for clarification of the percentage discount for the utilitarian value of the plea which the Judge declined to provide. With respect to his Honour, whilst he was not obliged to specify the percentage of the discount, this Court continues to encourage sentencing Judges to make the process of giving credit for pleas of guilty transparent: R v Thomson; R v Houlton (supra) at [162], R v Lynn [2004] NSWCCA 222 at [14], R v Sutton [2004] NSWCCA 225 [at 16] and [17], R v Waqa (No 2) [2005] NSWCCA 33 at [12] and [13]. 34 Applying to the head sentence of 10 years 8 months for manslaughter, a discount for the plea of 25 per cent, the notional starting point of the undiscounted sentence is 14 years and 3 months (rounded up to the next month). The notional starting points of the undiscounted sentence when discounts for the plea of 20 per cent or 15 per cent are applied are 13 years and 4 months and 12 years and 7 months (rounded up to the next month) respectively. The applicant contends that each of these starting points is excessive. 35 In Regina v Falzon [2000] NSWCCA 530 Smart AJ reviewed the cases to which the Court has been referred by the applicant and it is unnecessary to detail them here. Those cases reveal a range of sentences with a head term of 9 years and 4 months with a minimum term of 7 years being at the top: see R v Cramp (1999) NSWCCA 324. Cramp pleaded not guilty. Smart AJ observed [at para 47] however in Falzon that whilst he regarded the sentence imposed in Cramp as within the permissible range a "somewhat" higher sentence would also have been within that range. 36 In Falzon the appellant, a young man, was driving a stolen vehicle which was spotted by police and in the ensuing high speed chase a collision occurred in which a 17 year old boy lost his life. A sentence for manslaughter comprising a minimum term of 9 years and an additional term of 3 years was reduced on appeal as being manifestly excessive. A term of imprisonment of 10 years with a non-parole period of 7 years 6 months was determined to be the correct sentence. Smart AJ [at para 47] with whom Beazley JA and Ireland AJ agreed took into account that the 'appellant would have pleaded guilty, if he had been correctly advised". His Honour remarked that counsel was not able to refer the Court to any case in which there was a sentence of 12 years (or more) with a non-parole period of 9 years for "motor manslaughter". 37 The Crown points to what was said by Ipp J (then of the Court of Criminal Appeal of Western Australia) in R v McKenna (1992) 63 A Crim R 452 when his Honour observed (at p 465) that "criminality is not reduced because the crime can be characterised as 'motor vehicle manslaughter'". Seaman J (at p 462) in that case considered that a starting point of 16 years would not have been outside the range of a sound discretionary judgment bearing in mind that the maximum sentence in Western Australia for manslaughter is 20 years imprisonment. McKenna involved a collision causing death during a police pursuit of a stolen vehicle. 38 The maximum sentence in New South Wales for manslaughter is 25 years. 39 Whilst a consideration of sentences imposed by other Courts for the offence of manslaughter involving the use of a motor vehicle is helpful and promotes consistency in sentencing, it is for the Court to determine whether the sentence imposed in this case is manifestly excessive. 40 Cases such as Falzon do not have the strong element of pre-meditation which is present in the applicant's case. The applicant knew that the braking system of his prime mover and tri-axle flat bed trailer was defective and tyres were worn. Cognizant of those deficiencies, he entered into a commercial transaction to travel a lengthy journey from Newcastle to Sydney to pick up a load of timber and building materials weighing approximately 18 tonne and to return. He was aware that the increased load would further diminish the vehicle's ability to stop, yet he embarked on the return journey. His cognisance included the significant variations in the gradient of the F3 freeway and the high speed at which vehicles travelled upon that road. He knew of the steep descent to the Mooney Mooney bridge and that large volumes of traffic would be encountered on a Friday afternoon at 4pm. He was alive to the possibility that he may be required to slow his heavy vehicle and trailer from a high speed. The applicant was conscious of the danger of driving the heavily laden vehicle but chose to do so for commercial gain. He deliberately disregarded the safety of other road users in circumstances which involved a high risk that death or grievous bodily harm would follow. He was, using his Honour's parlance, "a disaster looking for a place to happen and happen it did". 41 The taking of a human life in the present circumstances is a very serious crime. The applicant's conduct involved a high degree of criminality. It is to be clearly understood that manslaughter is no less serious a crime because it is committed by the use of a motor vehicle. 42 His Honour correctly referred to the need to deter other persons prepared to "blatantly disregard the safety of other users of the road and behave as the offender did" (ROS at p 6). An important consideration in this case is the element of general deterrence. Heavily laden vehicles compete daily with non-commercial traffic on busy roads. The consequences of driving an unsafe heavy vehicle can be horrendous as is demonstrated by the mass destruction in this case. The sentence should plainly indicate to an operator of a heavy vehicle that safety cannot be sacrificed for financial reasons. 43 Appropriate weight was given by the Judge to the subjective circumstances of the applicant. 44 I am not persuaded that the notional undiscounted starting points of the sentence for manslaughter were excessive. In my view, the applicant's sentence was at the top of the range of an appropriate sentence. I am unable to find that the sentence was manifestly excessive. 45 I propose that leave to appeal be granted, but the appeal be dismissed.

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Ian Gobbet v Regina [2006] NSWCCA 46 Pearce v The Queen (1998) 194 CLR 610 Regina v Falzon [2000] NSWCCA 530 Regina v Janceski [2005] NSWCCA 288 R v Cramp [1999] NSWCCA 324 CASES CITED: R v Lynn [2004] NSWCCA 222 R v McKenna (1992) 63 A Crim R 452 R v Sutton [2004] NSWCCA 225 R v Tadrosse [2005] NSWCCA 145 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Waqa (No 2) [2005] NSWCCA 33

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