Moodie v R

Court of Criminal Appeal (NSW)|2020-06-12|Before: Bell P, Davies J, Adams J

Solicitors: Nyman Gibson Miralis Defence Lawyers and Advisors (Appellant) Office of the Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2017/00071794 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 17 October 2019 Before: King DCJ File Number(s): 2017/00071794

Headnote [This headnote is not to be read as part of the judgment] On 17 October 2019, Mr Sean Ritchie Moodie (the Applicant) was sentenced to imprisonment for a term of 4 years and 9 months with a non-parole period of 3 years, on a charge of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) after having pleaded guilty to that offence on 11 March 2019. The offence occurred at approximately 3pm on 16 September 2016. According to the Agreed Facts, the Applicant was momentarily distracted immediately prior to the collision as a result of looking in his rear vision mirror at another vehicle approaching him from behind, with that momentary distraction being "intensified" by the blood level of methylamphetamine, and the presence of amphetamine, which impaired his driving. The Applicant was also charged with a further offence contained on a s 166 Certificate, pursuant to the Criminal Procedure Act 1986 (NSW), being driving with an illicit substance in his blood under s 111(1)(a) of the Road Transport Act 2013 (NSW). A conviction was recorded in relation to that matter but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty was imposed. He was also disqualified by the sentencing judge from holding a licence for a period of 5 years. The Applicant sought leave to appeal his sentence. The principal issues on appeal were: 1. whether the sentencing judge erred in failing to give notice to the Applicant that he intended to depart from the Agreed Facts in a manner adverse to the Applicant, namely that the dangerous driving amounted to more than a "momentary distraction", thereby denying the Applicant procedural fairness; 2. whether the sentencing judge erred in failing to take into account the guideline judgment of R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte); 3. whether the sentencing judge erred in his assessment of the objective seriousness of the offence as falling "above the midrange"; 4. whether the sentence imposed was manifestly excessive; 5. whether the sentencing judge erred in imposing a period of five years' licence disqualification, because he misapprehended the operation of s 206B(2) of the Road Transport Act. The Court (Bell P, Davies and N Adams JJ agreeing) granted leave to appeal and allowed the appeal, holding: 1. The sentencing judge erred in failing to give the Applicant notice that he proposed to depart from a factual finding contained in the Agreed Facts, in a manner adverse to the Applicant. Clear notice must be given when the sentencing judge proposes to proceed on a different factual basis to otherwise agreed facts, and the parties must be given a meaningful opportunity to address the proposed different factual basis propounded: [43]-[45] (Bell P); [150], [152] (Davies J); [160], [163] (N Adams J). DL v R (2018) 265 CLR 215; [2018] HCA 32; Nguyen v R [2015] NSWCCA 268; Purdie v R [2019] NSWCCA 22; R v Crowley [2004] NSWCCA 256, considered. 1. The sentencing judge erred by his failure, effectively or in substance, to have regard to the guideline judgment of Whyte. Although the sentencing judge's failure formally to refer to Whyte was not determinative, it was nevertheless not insignificant. Had the decision been taken into account by the sentencing judge, the sentencing judge would reasonably have been expected to advert to the presence or absence of the factors identified in Whyte as relevant to assessing moral culpability and objective seriousness, even if the judge did not refer to the guideline judgment by name or citation: [65]-[67] (Bell P); [150], [159] (Davies J); [160] (N Adams J). Mina Nashed v R [2010] NSWCCA 282; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, considered. 1. The sentencing judge's failure to have regard to Whyte resulted in error as to his Honour's finding that the offence was above the midrange of objective seriousness. His Honour failed to advert to many of the "aggravating" factors identified in Whyte, include that this was not a case involving excessive speed, erratic or competitive driving, escaping police pursuit or failing to stop. Further, although there was evidence of illicit substances in the Applicant's blood at the time of the offence, the expert evidence did not establish that such substances intensified the Applicant's impairment beyond a reasonable doubt, and thus his Honour's conclusion as to the objective seriousness of the offence did not rest on a foundation supplied by the expert evidence before him: [68]-[73] (Bell P); [150], [155]-[158] (Davies J); [160] (N Adams J). R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, considered. 1. The sentence imposed on the Applicant was manifestly excessive. This followed from the sentencing judge's illegitimate "findings" about the non-momentary duration of the Applicant's distraction, the erroneous characterisation of the offence as falling "above the midrange", and a comparison with sentences imposed in cases which similarly involved truck drivers whose dangerous driving had occasioned death. In regard to the latter, the Court held that the proper and careful use of comparative sentence plays an important role in promoting consistency of sentencing, which is an important element of both criminal justice and the rule of law more generally: [94]-[96] (Bell P); [150] (Davies J); [160], [164] (N Adams J). Barnett v R [2014] NSWCCA 296; Costello v R [2017] NSWCCA 32; Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100; Hili v R (2010) 242 CLR 520; [2010] HCA 45; Markham v Regina [2007] NSWCCA 295; Morabito v Regina [2007] NSWCCA 126; Preston v Regina [2011] NSWCCA 25; R v Clampitt-Wotton [2002] NSWCCA 383; R v Craig Besant [2003] NSWCCA 388; R v Gardiner [2004] NSWCCA 365; R v Gerard De Groot [2016] NSWDC 93; R v Tinker [2019] NSWDC 427, considered. FL v R [2020] NSWCCA 114 disapproved in part. 1. The sentencing judge erred in imposing a five year period of disqualification from driving. This period of disqualification was undoubtedly influenced by the erroneous finding as to the objective seriousness of the offence. The Court held that a disqualification period of 3 years was appropriate: [105]-[106] (Bell P); [150] (Davies J); [160] (N Adams J). 2. The sentence imposed by the sentencing judge was set aside, and the applicant was re-sentenced to a term of imprisonment comprising a non-parole period of 1 year 8 months, and a balance of term of 1 year 2 months.

Judgment

BELL P: On 17 October 2019, Sean Ritchie Moodie (the Applicant) was sentenced to imprisonment for a term of 4 years and 9 months with a non-parole period of 3 years on a charge of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) after having pleaded guilty to that offence on 11 March 2019. The offence occurred at approximately 3pm on 16 September 2016.
Section 52A(1) of the Crimes Act provides: "Dangerous driving occasioning death A person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle-- (a) under the influence of intoxicating liquor or of a drug, or (b) at a speed dangerous to another person or persons, or (c) in a manner dangerous to another person or persons. A person convicted of an offence under this subsection is liable to imprisonment for 10 years."
The Applicant was also charged with a further offence contained on a s 166 Certificate, pursuant to the Criminal Procedure Act 1986 (NSW), being driving with an illicit substance in his blood under s 111(1)(a) of the Road Transport Act 2013 (NSW). A conviction was recorded in relation to that matter but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty was imposed. He was also disqualified by the sentencing judge from holding a licence for a period of 5 years.
The Applicant now seeks leave to appeal from that sentence.
The circumstances giving rise to the offence and the tragic death on 16 September 2016 at Deniliquin of Mr Frederick Hanson were set out in a Statement of Agreed Facts which was before the sentencing judge (the Agreed Facts).
As the first ground of appeal complains that the sentencing judge departed, without notice to the Applicant, from a central aspect of those Agreed Facts in reaching his decision as to sentence, it is necessary to set out the Agreed Facts in full for the purposes of consideration of that ground. They also form an essential background to a consideration of the remaining grounds of appeal.

The Agreed Facts

The Agreed Facts were as follows: "On Wednesday 14 September 2016 Sean MOODIE ('the offender') arrived at a property called 'Willmington' at 9pm. He was due to pick up cattle and transport them to Tongala in Victoria. At the time he was driving a Prime Mover, Federal registration NV33DF with two transport trailers attached, V36734 (NSW) and TA85JW (NSW) ('the road train'). The cattle were not ready to be transported until the following day, with the offender departing the 'Willmington' at 9.30pm on 15 September 2016 and travelling to Yanta arriving at 11.30pm taking a flexible half an hour break. He has continued to Wentworth arriving at 5am Friday 16 September 2016 and stayed for an hour. At 6am he continued to Tongala arriving at 9.30am and unloaded the cattle. The offender then recommenced travel at 2pm on 16 September [2016], departing from Tongala, travelling through Echuca and north along the Cobb Highway towards Deniliquin. On Friday the 16 September 2016 the deceased Frederick HANSON ('the deceased') attended the Deniliquin RMS Centre and obtained an unregistered vehicle permit for his tractor to enable it to be driven from his farming property to the local swap meet which was being held in Deniliquin. The conditions of the permit were: • To only drive the tractor from his place of residence to the swap meet and return • To use in daylight hours only • Not to exceed 45km/hr The deceased left his place of residence, 'Telko' on Walliston Road, Deniliquin around 2pm and travelled north along the Cobb Highway in his tractor. At approximately 3.10pm on Friday 16 September 2016 the tractor driven by the deceased and the road train driven by the offender were both travelling north along the Cobb Highway approximately 10kms south of Deniliquin. It is accepted that the road train was travelling at no less than 90km/hr and no more than 100km/hr, and the tractor was travelling at less than 45km/hr. As the road train has approached the tractor, the offender has failed to see the deceased travelling north on his tractor along the Cobb Highway until the final seconds, and collided with the rear of the tractor. The force of the collision ejected the deceased person and the tractor came to rest approximately 40 metres to the western side of the road in the grass. One tyre from the tractor continued to travel through the paddock, coming to a stop approximately 200 metres from the collision site. The offender person applied the brakes and jack knifed the prime mover and both trailers, coming to rest approximately 60 metres from the collision site on the eastern side of the roadway. The offender person exited the prime mover and immediately went over to the tractor to see if he could locate the driver. A number of other truck drivers had stopped at this point and brought the offender person back to the truck area. Other witnesses located the deceased in the grass and contacted 000. Police attended and started CPR on the deceased. Other emergency services arrived and HANSON was declared deceased. The offender person was conveyed to Deniliquin Hospital and a blood and urine test was conducted. The offender was requested to attend Deniliquin Police Station where he was entered into custody as a voluntary protected suspect. The offender was informed of his rights under Part 9 and participated in an electronically recorded interview R0444533. During the interview the offender stated that two or three vehicles had overtaken him approximately 2 - 3 kilometres prior to the accident and he could see in his mirrors that another vehicle was approaching from behind. When he glanced up again he only saw the tractor as he was hitting it. He did not have any time to brake prior to hitting the tractor as he has not seen it until he was upon it. The offender commented that he was not sure if the tractor had just come out onto the road way and also mentioned that the colour of the tractor was similar to the colour of the dead grass on the side of the road, which may have made it hard to see. The offender denied talking on the phone at the time, stated he had not consumed any illegal substances or alcohol, he just had not seen the tractor. While speaking to the offender, his face and skin were pale, he appeared talkative and anxious, his eyes, speech, balance and movements all appeared normal and police were unable to assess his sobriety. Police were unable to determine if his appearance was due to tiredness, shock or illicit substances. After the interview, the offender was conveyed to his brother's house where he awaited his girlfriend. The offender person's log book was seized and pages 4236 67-69 were examined, with no abnormalities found. The offender's phone and another phone which was located in the cab or the prime mover were seized and forensically examined. Analysis of the mobile phone used by the offender, and call records obtained by Police indicate the offender was not using a mobile phone immediately prior to the collision. The blood sample taken from the offender was subsequently analysed and was found to contain 0.03 milligrams of the prohibited drug amphetamine and 0.13 milligrams of the prohibited drug methylamphetamine per litre of blood. Amphetamine and methylamphetamine are commonly referred-to as 'speed' and 'ice'. Methylamphetamine is metabolised partially to amphetamine. The relative concentration of methylamphetamine to the amphetamine level in the offender person, indicates the amphetamine was likely to be due to metabolism of methylamphetamine. The blood level of methylamphetamine, and the presence of amphetamine, impaired his driving by intensifying his momentary distraction. The road surface was well maintained with the area being flat and a relatively straight section of roadway. The road comprised of single lanes separated by broken white centre lines and white fog lines. The sign posted speed limit was 100km/hr." (emphasis added).
The first of the passages highlighted above reflected the Applicant's claim that he was momentarily distracted immediately prior to the collision as a result of looking in his rear vision mirrors at another vehicle approaching him from behind.
The second of the passages highlighted above appears to amount to an acceptance by the Crown that the Applicant was momentarily distracted, immediately prior to the collision as a result of looking in his rear vision mirror at another vehicle approaching him from behind, albeit that that momentary distraction was "intensified" by the blood level of methylamphetamine, and the presence of amphetamine, which impaired his driving. This passage in many respects lies at the heart of the current application for leave. It is somewhat problematic and the Crown accepted in this Court that "it is difficult to understand what that [the phrase "intensifying his momentary distraction"] could precisely mean".

Other evidence before the sentencing judge in addition to the Statement of Agreed Facts

The sentencing judge had before him and took into consideration three victim impact statements of close relatives of the deceased, a Sentencing Assessment Report dated 24 April 2019, a report and an addendum report of Dr Judith Perl, a senior pharmacologist with the Traffic Highway Patrol Command Impaired Driving Research Unit, various photos and a sketch plan of the Cobb Highway, Deniliquin and an aerial map of the collision site.
His Honour also had before him a Psychiatric Report of Dr Lester A Walton and a report of Dr Angela Sungaila of the Victorian Institute of Forensic Medicine which were filed on behalf of the Applicant.

Sentencing judgment

In his sentencing judgment, the Agreed Facts were reproduced.
The sentencing judge then referred to the series of photographs of the scene and sketch plan of the Cobb Highway. His Honour noted that "[t]he photos of the collision scene include photographs of the victim's tractor. Although in appearance it is somewhat rusty, it is of a relatively bright orange colour". He then continued: "As demonstrated from the plan and the photographs, the road section where the accident occurred can be reasonably referred to as dead straight and dead flat. There is on each side of the road a dirt run-off before any vegetation. The vegetation is low growing grass. There were no trees or other impediments to the offender being able to have a clear view of a vehicle travelling directly in front of him for a considerable period of time before his vehicle, without braking, collided with the rear of the tractor with such force as to rip off the offside over-large tractor tyre and its hub from the tractor, so the tractor was no doubt pushed for some distance down the road before it speared off to the left. The deceased was found at a point further along from where the tractor came to rest. The offender's road train, after he applied the brakes, jack-knifed and ran entirely off on the wrong side of the road and came to rest in part on the verge and the surrounding paddock. It is extremely difficult to understand how the driver of a road train being positioned in the primary mover, which of course places him at a higher point than the driver of an ordinary car, on a dead straight, dead flat road, with nothing intervening, could not have seen the tractor until he hit it. His explanation was that he was looking in his rear vision mirrors because he was aware of another vehicle behind, who he believed would in due course endeavour to pass his road train. If that was so he must have spent a considerable period of time staring in his rear vision mirrors rather than attending to the road in front of him, in my view". (emphasis added).
The sentencing judge returned to the view he expressed in the last sentence of this passage on two further occasions in his sentencing judgment. After referring to that part of the Agreed Facts referring to the intensification of the Applicant's "momentary distraction" (see the passage highlighted at [7] above), his Honour said: "…as indicated, I have some difficulty with the expression 'momentary distraction'. In my view, the distraction must have been more significant that momentary considering the road circumstances and the view that I have previously referred to".
The sentencing judge returned to this observation towards the end of his judgment, stating that: "To the sentence assessment officer [the Applicant] acknowledged the serious nature of the offence, and maintained that he did not see the other vehicle until the moment of impact. It is apparent from the facts that he did not see it until the moment of impact, but in my view it is extremely difficult to accept that it was some 'momentary distraction', impaired by the presence of methylamphetamine and amphetamine".
As will be seen, these three passages are heavily relied upon by the Applicant to support his first ground of appeal.
The sentencing judge held that, whilst the offence did "not fall at the highest range of objective seriousness", it was "certainly above the midrange".
As to subjective matters, the sentencing judge noted that the Applicant's criminal history was limited. He noted one matter of behaving in an offensive manner which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act and which the sentencing judge properly described as irrelevant to the current matter. More significantly, the sentencing judge noted that the Applicant had received an Intensive Correction Order of 9 months in 2014 for the supply in 2013 of a prohibited drug, although his Honour noted that there was no evidence before the Court as to what that drug was.
The sentencing judge accepted in his sentencing judgment that the Applicant "is indeed genuinely remorseful and contrite in relation to his offending". The sentencing judge also accepted that the Applicant was at low risk of re-offending and that there was a good prospect of rehabilitation.
The sentence included a discount of 5% for an early guilty plea. That relatively modest level of discount was not challenged on appeal although it is open to this Court, in the event of re-sentencing, to revisit that level of discount.

Grounds of appeal

The Applicant relies upon the following six grounds of appeal: "Ground 1 - His Honour's finding that the dangerous driving amounted to more than momentary distraction as per the agreed facts caused the sentence proceedings to miscarry because his Honour did not indicate that he intended to make a finding outside the agreed facts that was adverse to the applicant. Ground 2 - His Honour failed to take into account the guideline judgment of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. Ground 3 - His Honour was wrong to find that the objective seriousness of the offence was 'above the midrange'. Ground 4 - His Honour erred in finding 'it is appropriate to take into account specific deterrence in relation to this particular offender'. Ground 5 - The sentence imposed was manifestly excessive. Ground 6 - His Honour erred in imposing a period of five years' licence disqualification because he misapprehended the operation of s.206B(2) of the Road Transport Act."

Ground one

It may readily be inferred that the inclusion in the Agreed Facts of a reference to "momentary distraction" (albeit subject to the important qualification that the "momentary distraction" was "intensified" by the blood level of methylamphetamine, and the presence of amphetamine) was neither casual nor accidental.
The concept of "momentary" distraction or inattention or misjudgement, though not in terms a statutory expression, has assumed forensic significance in the case law associated with dangerous driving and s 52A of the Crimes Act as a result of this Court's "Guideline" judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte). The expression "momentary inattention" had also assumed forensic significance in an earlier guideline judgment of this Court concerned with s 52A of the Crimes Act: see R v Jurisic (1998) 45 NSWLR 209 at 231; (1998) 101 A Crim R 259 (Jurisic). Jurisic was reconsidered in Whyte.
Guideline judgments have statutory force and oblige sentencing judges to take them into account: see Pt 3, Div 4 of the Crimes (Sentencing Procedure) Act and Whyte at [32]-[67] especially at [65].
In Whyte, Spigelman CJ referred at [204] to a "frequently recurring case of an offence under s 52A" of the Crimes Act as having the following characteristics: (i) young offender; (ii) of good character with no or limited prior convictions; (iii) death or permanent injury to a single person; (iv) the victim is a stranger; (v) no or limited injury to the driver or the driver's intimates; (vi) genuine remorse; (vii) plea of guilty of limited utilitarian value.
The Chief Justice continued at [205]: "As the Parliament has made clear, in the maximum penalties for the offence, conduct which causes death or grievous bodily harm, even in the absence of any intention to cause such injury, is to be regarded as a serious crime. However, 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."
At [206], Spigelman CJ referred to the Jurisic guideline as containing the proposition that "[a] non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment".
In light of the High Court's intervening judgment in Wong v R (2001) 207 CLR 584; [2001] HCA 64 (Wong), and s 5 of the Crimes (Sentencing Procedure) Act, at [214] of Whyte, the Chief Justice restated the guideline for a typical case as identified at [25] above as follows: "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 misjudgment."
Both in the Jurisic guideline and the restated Whyte guideline, momentary inattention or misjudgement has been equated with a low level of moral culpability and, as Spigelman CJ had observed at [205] of Whyte, the degree of moral culpability involved is a critical component of the objective circumstances of the offence. I apprehend no difference between the language of "momentary inattention or misjudgement" as used in the Whyte guideline, and "momentary distraction" as used in the Agreed Facts.
Since Whyte, innumerable cases involving s 52A of the Crimes Act have drawn upon the guideline, and have placed emphasis on the momentary nature of the driver's distraction or inattention.
To return to the point made at [22] above, the inclusion in the Agreed Facts of reference to the Applicant's "momentary distraction" was of forensic significance, and this is only reinforced when it is appreciated that the Applicant pleaded guilty to the offences on the same day that agreement as to the facts was reached. Although no evidence was led in this regard, it may well be that securing the Crown's agreement to this fact played a role in securing the plea. Whether or not that was the case, the Applicant was entitled to proceed on the basis that he would be sentenced by reference to the Agreed Facts or, at the very least, that there would not be a departure from the Agreed Facts without clear notice being given to him.
The passages in the sentencing judgment upon which the Applicant relies in support of the first ground of appeal, and his submission that the sentencing judge departed from the Agreed Facts in a material way without notice to him, have been set out at [13]-[15] above. Counsel for the Applicant submitted, in this respect, that the Applicant had been denied procedural fairness, citing R v Crowley [2004] NSWCCA 256 at [46] where Smart AJ, with whom Wood CJ at CL and Hidden J agreed, observed: "Agreed facts should always be carefully checked by all parties and their legal representatives, and especially by counsel for an offender. This should not be perfunctory. It is counsel's duty to go through the facts agreed with his or her client. Where agreed facts are presented and the other materials tendered by either side depart from the agreed facts, counsel should draw this to the judge's attention and advise which is to prevail and on what facts the offender should be sentenced. If this does not happen and the judge subsequently discovers that there is a difference he should raise it with the parties and not proceed to sentence until the matter is resolved by agreement or otherwise. Justifiable complaints of a lack of procedural fairness should be avoided."
The law is clear that where a sentencing judge proposes to make a factual finding or findings of an offender's culpability which departs from that which is contained in the agreed facts (which he or she is entitled to do, not being bound by any statement of agreed facts), the judge must give the parties notice of this matter and the opportunity to address it by both evidence and submissions: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [39] (DL); Purdie v R [2019] NSWCCA 22 at [51]-[52] per Price J, with whom Bathurst CJ and Hoeben CJ at CL agreed; and Nguyen v R [2015] NSWCCA 268 at [45]-[46] per Price J, with whom Hoeben CJ at CL and Button J agreed. Such notice must, moreover, be clear as to the different factual basis by reference to which the sentencing judge is proposing to proceed, and give the parties a meaningful opportunity to address the proposed different factual basis propounded.
Counsel for the Applicant also submitted that: "…in order to sentence the applicant on the basis of some other more serious version of his conduct his Honour was not only required to state what that conduct was and but also find that it had occurred beyond reasonable doubt (The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]). His Honour did not state what conduct he sentenced the applicant for nor did he say why he was satisfied of that beyond reasonable doubt."
In R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], the majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) said that: "As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge 'may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities'." (footnote omitted, emphasis added).
The Crown made two principal submissions in response to the first ground of appeal. First, that the sentencing judge did not in fact depart from the Agreed Facts in the three passages that have been highlighted at [13] - [15] above and that all his Honour was doing in these passages was expressing a measure of scepticism at the description "momentary distraction".
That submission should be rejected. In two of the three passages, the sentencing judge described his observations as reflecting "my view". Whatever be the precise ambit denoted by the term "momentary", the sentencing judge took the view that the Applicant's distraction (and therefore his culpability) was of a significantly greater duration.
Further, if, contrary to this view of the matter, the sentencing judge did not in fact depart from the Agreed Facts, his "observations" and evident scepticism as to the expression "momentary distraction" disclose that his sentencing discretion was vitiated by an irrelevant consideration, namely his own musings, as to the duration of the distraction, contrary to the Agreed Facts. However, as I have noted at [37] above, the sentencing judge's language indicates a clear departure from the Agreed Facts, and the fact that his Honour made no less than three references to this fact highlights that it played a significant role in the exercise of his sentencing discretion.
In reaching this view, I have not overlooked the fact that the Agreed Facts stated that "[t]he blood level of methylamphetamine, and the presence of amphetamine, impaired his driving by intensifying his momentary distraction." Precisely what was meant by this statement was not made clear either by any of the other Agreed Facts, the expert report of Dr Perl which was prepared on 17 February 2017 prior to the Agreed Facts being agreed, or counsel for the Crown.
In submissions before the sentencing judge, counsel then appearing for the Crown submitted that "[t]he Crown never ever sought to quantify the degree of distraction". Whilst on appeal, counsel for the Applicant took issue with this statement by reference to the Crown's agreement to the phrase "momentary distraction" in the Agreed Facts, the Crown's failure to seek to quantify the length of distraction appears to have led the sentencing judge to seek to do this for himself, without:

the assistance of any expert evidence such as that of a forensic accident investigator (cf Barnett v R [2014] NSWCCA 296 (Barnett));
the benefit of a view;
any apparent consideration of the significance of the vastly different speeds at which the Applicant's truck and the deceased's tractor were travelling;
any perception evidence in relation to the visual identifiers of the tractor. In this last respect, the sentencing judge referred to the fact that the tractor was a rusty orange in colour, but made no allowance for or assessment of the fact that, from behind, much of what would be in the view of an approaching driver would be the tractor's large and broad grey wheels which, from the photographs reproduced in the appeal papers, were very similar in colour to the surface of the Cobb Highway.

These considerations only serve to illustrate how the matters which the sentencing judge took it upon himself to assess, departing in that context from the Agreed Facts, needed properly to be notified well in advance to ensure that the Applicant had a reasonable and meaningful opportunity to deal with them.
The Crown's second response to the complaint of a denial of procedural fairness was to mount an argument that the sentencing judge had put the Applicant and his then counsel on notice of the possibility of departure from the Agreed Facts. This was said to have occurred during the following exchange which took place on the morning of 17 October 2019 when the sentencing hearing was called over, the hearing proper commencing shortly thereafter with sentence being pronounced with reasons after lunch on the same day. In the passage relied upon by the Crown, the exchange between the sentencing judge and counsel for the Applicant was as follows: "His Honour: Mr Crown, in relation to the matter of Moodie, I believe I would be assisted by having some photographs of the scene - Bailey: Yes, that occurred to me - His Honour: --and including - I presume there is a plan of the roadway setting out where the various vehicles were and matters of that nature. Bailey: Yes, thank you. I'll provide that, your Honour. His Honour: All right. I raise that in particular because Mr Moodie says that he couldn't or didn't see the tractor until he [hit] it, in effect, and said that this must have something to do with the colour, and I understand it was an orange tractor and he was [referring] to the grass. So a photograph of the scene might assist in that regard, also giving some idea, better than just the measurement, as to where matters were located and particularly whether the road was straight, which is what I understand from the facts, but I'd like to have some further evidence in that respect."
This passage was wholly inadequate to put the Applicant on notice that the sentencing judge was contemplating departing from the reference to "momentary distraction" in the Agreed Facts. It signified that the sentencing judge wished to have some photos and a plan of the site of the collision. It did not indicate that his Honour was proposing to embark upon an assessment or attempted quantification or approximation of the period of time during which the Applicant was distracted. The Crown's submission in this regard was one that was informed by considerations of hindsight. Such indication as was conveyed by the sentencing judge's requests for further information immediately prior to the sentencing hearing was oblique at best and, in my opinion, given the significance of the matter for the subsequent sentencing, wholly inadequate.
In this regard, counsel for the Applicant was not asked any questions about the photos or plans during the sentencing hearing, the sentencing judge did not put the Applicant or his counsel on notice that he was going to make findings as to the length of the distraction that put it as significantly more than that which was conveyed by the expression "momentary distraction", and counsel for the Crown also made no such submission. Indeed, as noted at [40] above, counsel for the Crown submitted that "[t]he Crown never ever sought to quantify the degree of distraction". The sentencing judge did not at this stage raise with either the Crown or counsel for the Applicant that, notwithstanding that fact, his Honour was proposing to engage in this quantification exercise. The only matters the sentencing judge expressly raised with the Applicant's counsel following the Crown's observation as to the duration of the distraction were unrelated, namely the timing of the guilty plea and the question of remorse.

Grounds two and three

It is convenient to consider grounds two and three together. The second ground of appeal is that the sentencing judge failed to take into account the guideline judgment in Whyte.
The sentencing judge did not refer in terms to Whyte in his sentencing judgment, although counsel for the Applicant accepted that a failure to formally refer to the decision did not mean that the matters highlighted in such a guideline judgment were not necessarily taken into account by the sentencing judge. This concession was correct. In the same way, a formalistic reference to a guideline judgment in a sentencing decision will not necessarily mean that it has been taken into account in a meaningful and appropriate way.
The question is one as to whether or not the guideline judgment was in fact taken into account, as it must be: see Whyte at [62]. That question is one of substance and not form. It will principally fall to be assessed by a comparison between the factors identified in the guideline judgment and the reasons for the sentencing decision. Also relevant, but to a lesser degree, will be whether or not the sentencing judge has been referred to the relevant guideline judgment (in the present case, Whyte) in the course of submissions during the sentencing hearing. Here, it is common ground and plain on the face of the transcript that the sentencing judge was not referred to, and did not himself make reference to, Whyte.
Counsel for the Crown pointed out that the sentencing judge heard submissions and delivered his judgment on the same day whilst on circuit and, in this context, invoked Spigelman CJ's observation in R v McNaughton (2006) 66 NSWLR 566 at 577; [2006] NSWCCA 242 at [48], and like observations of Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) in R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at 180-181. Notwithstanding the good sense in those observations, and the commendable discharge of judicial duty constituted by an ex tempore judgment where one is capable of being delivered, the context (on circuit) and/or form (ex tempore) in which a sentencing judgment is delivered does not relieve a sentencing judge from what Spigelman CJ described in Whyte at [67] as the "statutory effect on sentencing judges of a guideline judgment - that such a judgment should be 'taken into account'."
The third ground of appeal is that the sentencing judge was wrong to find that the objective seriousness of the offence was "above the midrange".
The Applicant's submission was that, whilst accepting the restraint that must be accorded to the review of an assessment of objective seriousness by an appellate court consistent with decisions such as Mulato v R [2006] NSWCCA 282 at [37] and [46]; R v Fahda [2013] NSWCCA 86 at [4]; and Magro v R [2020] NSWCCA 25 at [29], the assessment of "above the midrange" was not open to the sentencing judge. It was pointed out that the sentencing judge did not identify in his judgment what matters were central to his assessment of the offence as "above the midrange".
Counsel for the Applicant submitted that the sentencing judge's error largely arose from his failure to take into account the matters raised under Whyte. In addition to the first limb of the restated Jurisic guideline that I have referred to at [28] above, Spigelman CJ in Whyte also noted at [229] that: "The guideline for offences against s 52A(1) and s 52A(3) of the Crimes Act 1900 for the typical case identified above should be: 'Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate'."
At [233] of Whyte, Spigelman CJ said that "[t]his guideline focuses attention on the objective circumstances of the offence." At [216]-[217], his Honour noted the following factors that a Court must take into account as being relevant to an assessment of moral culpability: "(i) Extent and nature of the injuries inflicted; (ii) Number of people put at risk; (iii) Degree of speed; (iv) Degree of intoxication or of substance abuse; (v) Erratic driving; (vi) Competitive driving or showing off; (vii) Length of the journey during which others were exposed to risk; (viii) Ignoring of warnings; (ix) Escaping police pursuit; (x) Degree of sleep deprivation; (xi) Failing to stop."
At [228] of Whyte, Spigelman CJ said: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct."
Counsel for the Applicant placed particular emphasis in her submissions on the sentencing judge's failure to advert to many of the "aggravating" factors set out at [53] above in a context where the case was not, she submitted, far removed from the typical or "frequently recurring" case of an offence under s 52A of the Crimes Act (see [25] above). This was not a case, for example, involving excessive speed, erratic or competitive driving or showing off, of ignoring warnings, of escaping police pursuit or of failing to stop.
For these reasons, in addition to the momentary nature of the Applicant's distraction, it was submitted that the Applicant's moral culpability could not be described as "high" in the context of the Whyte guideline judgment.
It may also be observed that there is a close correlation between the assessment of objective seriousness and the first ground of appeal because of the conceptual relationship between the length of any operative distraction and the seriousness of the offence from an objective perspective, as Spigelman CJ made plain in the passage from Whyte, which has been referred to at [25] above.
These submissions were all subject to the important fact, however, as counsel for the Applicant acknowledged, that there was an aggravating factor of significance in the present case, namely the presence of methylamphetamine and amphetamine in the Applicant's blood. Further, the Applicant was bound to accept what was stated in the Agreed Facts extracted at [7] above, namely, that the presence of those illicit substances in his blood intensified the degree of impairment of his driving. The difficulty is that the Agreed Facts simply cast no light on the extent to which the degree of impairment was "intensified". In this context, it is necessary to make reference to the expert reports of Dr Perl and Dr Sungaila that were before the sentencing judge.
Dr Perl in her report of 17 February 2017 (which pre-dated the plea and agreement as to the facts) had stated that: "Based on my specialised knowledge and relying on the very limited information provided, I cannot form a firm opinion that the driver Sean MOODIE was under the influence of the drugs detected, although given the circumstances of the collision and the significant blood level of methylamphetamine, I would certainly have expected there to have been impairment present." She further noted that: "Although the allegedly [sic] circumstances of the collision are highly suggestive of distraction and that is often a feature with methylamphetamine affectation, and the blood level of methylamphetamine (and it's metabolite) indicate very recent use of methylamphetamine (expected use within 6 hours), there is insufficient information relating to his driving behaviour prior to the collision and insufficient observations of his behaviour and demeanour to determine impairment 'beyond a reasonable doubt', although given his significant blood level, I would certainly expect impairment of his driving ability to have been present. Although Sean MOODIE denied using illicit drugs, the presen[ce] of methylamphetamine confirms his use of the drug and the blood concentration of methylamphetamine confirms use was very recent."
In an addendum report of 15 May 2019, after the plea and agreement as to the facts, Dr Perl responded to a supplementary question from the Office of the Director of Public Prosecutions (NSW) as to what concentration of methylamphetamine would produce a blood level of 0.13mg/litre 17 hours after ingestion, as follows: "The blood concentrations of methylamphetamine and amphetamine may be consistent with the use of the drug methylamphetamine about 17 hours prior if he was a regular user of the drug, but if he was not, then the blood concentration still strongly suggests very recent use of methylamphetamine. However, I cannot indicate what dose he used (other than stating it was a significant recreational dose which would have produced significant stimulant effects). Dr Walton indicates MOODIE informed him he was provided with a liquid which he understood contained some form of stimulant allegedly to keep him awake. Methylamphetamine is a stimulant and given that it appears from the doctor[']s report that MOODIE had previous experience with amphetamines he would certainly be expected to know that such drugs produce stimulation and increase wakefulness. If MOODIE in fact knowingly used a stimulant (which was methylamphetamine) 17 hours prior to the collision, then the blood concentration at peak would have been at least double the concentration found in his blood sample and that would suggest a significant dose which would have produced very significant stimulant effects and at the time of the collision he would have been well into the withdrawal stage of the drug use and would have been experiencing rebound sedation. This state of rebound sedation and fatigue can result in drowsiness, fatigue, slower reactions, impaired perceptions and vigilance. Therefore, it is more likely that the drug effects would have been a factor in the collision especially since the Accused stated he did not see the tractor in time to brake or avoid it."
There is an apparent and not insignificant tension between the premise on which this supplementary question was posed, namely ingestion 17 hours prior to the collision, and Dr Perl's inference in her principal report that the methylamphetamine was used ("expected use") within 6 hours of the collision. In her principal report, although Dr Perl opined that she "would certainly expect impairment of [the Applicant's] driving ability to have been present", she did not express any opinion as to the likely degree of impairment.
Dr Perl's addendum report issued on the basis of a different assumed timing of ingestion of the methylamphetamine, namely 17 hours prior to the collision, and in particular her statement that "[t]his state of rebound sedation and fatigue can result in drowsiness, fatigue, slower reactions, impaired perceptions and vigilance" (emphasis added), also left the matter in a state of some uncertainty. (The 17 hour timeframe derived from the Applicant's recollection as supplied to Dr Walton, although this was some two and a half years after the collision.)
In response to Dr Perl's reports, Dr Sungaila gave evidence that: "At paragraph 1 Dr Perl states: given the circumstances of the collision and the significant blood level of methylamphetamine, I would certainly have expected there to have been impairment present. My conclusion would be that impairment was possible but not certain. At paragraph 6, Dr Perl states: methylamphetamine reaches a maximal blood circulation approximately 2.5 hours after consumption, irrespective of the means of administration. If the administration of methylamphetamine is intravenous or inhalation through a 'pipe', the peak blood circulation immediately follows the use because the drug enters the blood stream instantly. In paragraph 7 Dr Perl states that: the reported fatal range in (whole) blood is reported [a]s greater than 0.1mg/L. I would qualify this to say that since the recreational use of methylamphetamine has become so pervasive, the blood levels that are determined in drivers are very often much higher than 0.1mg/L. The lower levels of toxicity were prominent in old texts when methylamphetamine use was not as widespread as it is now. Fatalities are more often related to the activities that users of stimulants engage in, because of the cognitive effects of the drugs rather than from the physiological effects of the drug itself. At paragraph 12, Dr Perl states: the blood level of methylamphetamine (and its metabolite) indicate very recent use of methylamphetamine (expected use within 6 hours). It is not possible to determine recency of use from the blood level of the drug. In Paragraph 2 of Dr Perl's addendum statement she states: The blood concentration of methylamphetamine and amphetamine may be consistent with the use of the drug methylamphetamine about 17 hours prior if he was a regular user of the drug. The conclusion she draws is unclear. The regular use of the drug does not affect its half-life and therefore its elimination time. In Paragraph 2 of her addendum statement, Dr Perl also says, Mr Moodie, if he had used the drug earlier, would have been well into the withdrawal stage and would have been experiencing rebound sedation. I would qualify this to say that it is possible Mr Moodie was experiencing rebound sedation but there are insufficient facts to be certain of this."
It is in this evidentiary context that grounds two and three must be considered.
In my opinion, there was a failure on the part of the sentencing judge effectively or in substance to have regard to Whyte, and this resulted in error as to the finding that the offence was above the midrange of objective seriousness. Although the sentencing judge's failure formally to refer to Whyte is not determinative (see [47] above), it was nevertheless not insignificant, especially when coupled with the fact that neither counsel referred to it in their submissions nor worked through the various factors identified in Whyte in oral address. Further, had the decision been taken into account by the sentencing judge, one would reasonably expect the sentencing judge to advert to the presence or absence of the factors identified in Whyte as relevant to assessing moral culpability and objective seriousness, even if his Honour did not refer to the case by name or citation. The sentencing judge not only did not refer to Whyte but he also did not refer in terms to the Applicant's moral culpability.
The sentencing judge did not do what Garling J, with whom Simpson and Price JJ agreed, said in Mina Nashed v R [2010] NSWCCA 282 at [37] (Mina Nashed), that a sentencing judge was required to do, namely: "to make an assessment about whether the particular case has features about it which suggest that it is sufficiently within or akin to the frequently recurring case described in Whyte to mean that, for the purpose of the guidelines, it ought be regarded as a typical and not an exceptional case."
Accordingly, I would uphold ground two.
I would also uphold ground three and would have done so even if I were satisfied, contrary to my acceptance of ground two, that the guideline judgment in Whyte had been taken into account by the sentencing judge.
Had there been no drug use, a case of dangerous driving occasioning death where the driver was momentarily distracted would not, under Whyte, ordinarily attract a custodial sentence at all, especially in circumstances where, as in the present case, it was agreed that the speed limit was being observed, there was genuine remorse by the Applicant and a strong subjective case.
That the Applicant had ingested methylamphetamine was undoubtedly an aggravating factor which it was accepted compelled the need for a custodial sentence. But the critical question is whether or not the sentencing judge was correct to characterise the offence as being above the midrange.
The Applicant's moral culpability could not, in my opinion, be fairly said to have been established to be such as to warrant characterisation of the offence as "certainly above the midrange". This is in circumstances where the Agreed Facts shed little light at all on the degree or extent of intensification of impairment, and the expert evidence called on behalf of both the Crown and the Applicant did not greatly advance the matter and, on one view, undermined the agreed fact of impairment (by expressing the matter as not capable of establishment beyond reasonable doubt, in the case of Dr Perl's primary report, and one of only "possibility" in the case of Dr Sungaila and Dr Perl in her addendum report).
The sentencing judge's conclusion as to the objective seriousness of the offence did not secure a foundation in the expert evidence before him, but was rather built upon the sentencing judge's illegitimate speculation as to the length of the Applicant's distraction which, for reasons set out under consideration of ground one, was not open to his Honour in the circumstances of the case.
Grounds two and three should be upheld.
In light of my conclusions in respect of grounds one, two and three, it is strictly unnecessary to deal with grounds four and five. Ground four, however, can be dealt with briefly.

Ground four

The fourth ground of appeal was that the sentencing judge erred in finding "it is appropriate to take into account specific deterrence in relation to this particular offender". That ground, although not abandoned, was not the subject of any oral submissions.
In written submissions, the substance of the complaint was modified to be a complaint about the weight attributed to the factor of specific deterrence. The difficulty with this modified form of criticism is that the sentencing judge did not in fact indicate what weight he gave to the factor of specific deterrence, but only stated that it was appropriate to take specific deterrence into account. With that statement, there could be no criticism by the Applicant.
I would not uphold the fourth ground of appeal.

Ground five

Again, by reason of the conclusions already reached with respect to grounds one to three, it is strictly unnecessary to consider the fifth ground of appeal, which was that the sentence imposed was manifestly excessive. The arguments advanced in support of this ground have relevance, however, to the re-sentencing exercise which is dealt with at [107]-[148] below.
The essence of the Applicant's argument as to manifest excess was that, given the legislative guidepost of 10 years provided by the maximum penalty for the offence (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]), the sentencing judge's starting point for the Applicant's sentence of 5 years (before a 5% discount for an early plea) was excessive, as the Applicant's: "culpability was not of the highest order and his conduct causing the collision was limited to 'momentary distraction' (inattention). It was not a matter to which the guideline in R v Whyte of not less than three years would apply. The applicant was a 39 year old man with a very limited criminal record. He expressed sincere remorse and contrition and he had good prospects of rehabilitation."
The Applicant sought to support his claim of manifest excess by reference to a series of similar offending by truck drivers, in contravention of s 52A(1)(c) of the Crimes Act.
To the extent that comparative sentences in similar cases were deployed in aid of this ground of appeal, the important principle of consistency in sentencing warrants reference to those decisions both for the purposes of this ground of appeal and also for the purposes of any re-sentencing of the Applicant by this Court, in accordance with the decision of Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 (Kentwell).
In this context, and as a preliminary matter, the Crown cited the following passage in FL v R [2020] NSWCCA 114 at [77]-[79] (FL), in which Wilson J, with whom R A Hulme and Hamill JJ agreed, said: "[77] The utility of the applicant's approach in seeking to establish manifest excess by reference to statistics and a selection of similar cases has been regularly, and repeatedly, decried by this Court as inapposite to the task. Recently, in Sabbah v R (Cth) [2020] NSWCCA 89, a similar argument was advanced, with reliance placed on statistics and 'comparable cases' to argue that the sentence imposed was manifestly excessive. With the agreement of McCallum JA and Cavanagh J I said, at [132]-[135]: 'This Court has frequently emphasised the lack of utility in relying on a series of cases, or sentencing statistics, or both, to contend that a particular range of sentence can be determined and, in turn, that the impugned sentence falls outside it and is manifestly excessive. The point has been made in, to select a very few from a very long list, Vandeventer v R [2013] NSWCCA 33 at [45] - [46]; Dang v R [2014] NSWCCA 47 at [55]; Pham v R [2014] NSWCCA 115 at [57]; MLP v R [2014] NSWCCA 183 at [41] - [44]; Ngatamariki v R [2016] NSWCCA 155 at [65]; and Naveed v R [2019] NSWCCA 149 at [63]. It is an easy thing to find a case or cases where another offender has received a lesser sentence and, by making the comparison between penalties imposed, argue that the sentence in the case at hand was too harsh. That approach is far too glib a mechanism by which to assess the complicated task which is determining an appropriate sentence for an offender. It also falls foul of what has been said by the High Court about the use of so-called comparable cases. In Hili v The Queen; Jones v The Queen 242 CLR 520 [2014] HCA 45 at [59] the Court said, citing Dinsdale v The Queen (2000); [2000] HCA 54; 202 CLR 321 at 325 at [6] and Wong v The Queen (2001) 207 CLR 584 at 605 [58]: "[ ... ] appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'." It was held that the range of sentences that have been imposed in the past does not fix the boundaries within which future judges must determine sentences.' [78] It is no answer to the principles the Court there set out to offer a greater number of 'comparable cases' by which to argue that a sentence is manifestly excessive. [79] Of the 15 cases that the applicant advances as demonstrative of error in the sentence imposed upon him, none is truly comparable and little can be drawn from them by way of a 'range' of sentence. There should be no surprise in that since no two crimes and no two offenders are alike. Necessarily, sentences will also differ."
There are aspects of this passage that, in my respectful opinion, amount to too general a statement and require a degree of qualification. In particular, the statement that the use of "similar cases" has been "regularly, and repeatedly, decried by this Court as inapposite to the task" is too strong a statement. The position is, again with respect, rather more nuanced than is suggested by the words "decried" and "inapposite". Far from being inappropriate, the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally. As Sir Anthony Mason put the matter with customary clarity in Lowe v R (1984) 154 CLR 606 at 610-611; [1984] HCA 46: "Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community."
Spigelman CJ, with similar clarity and to similar effect, said in Jurisic at 216: "Inconsistency in sentencing offends the principle of equality before the law. It is itself a manifestation of injustice. It can lead to a sense of grievance amongst individuals on whom uncharacteristically severe sentences are imposed and amongst the broader community, or victims and their families, in the case of uncharacteristically light sentences."
Whilst it is true to say that no two cases and no two offenders are identical or the same, I do not share the opinion expressed by Wilson J that "no two crimes and no two offenders are alike": cf FL at [79]. Indeed, decisions which do take into account comparative sentences proceed on the basis that cases do share common, or at least similar, features. So too, guideline judgments proceed by reference to a concept of a "frequently recurring case": see, for example, Whyte at [204].
In Wong at [12], Gleeson CJ observed that: "Both in argument, and in reasons for judgment, inadequacy or excessiveness is often demonstrated by a process of comparison. Such a process is a legitimate forensic tool for advocates and judges; and has been employed for many years."
Further, in Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53] (Hili), the plurality went so far as to say that "in seeking consistency, sentencing judges must have regard to what has been done in other cases" (emphasis added). Moreover, in the context of not disturbing the Court of Criminal Appeal's decision that the sentence imposed in that case at first instance was manifestly inadequate, the plurality observed at [62] that the "chief considerations which pointed to inadequacy in these cases were the nature of the offending, and the sentences that had been imposed in cases most closely comparable with the present" (emphasis added). Indeed, in Hili, the plurality did not question the legitimacy of the use of "only one or two … closely comparable" cases (see at [64]) to found the conclusion of manifest inadequacy, stating at [67] that the: "… sentences passed on the applicants at first instance were very much lower than those passed in either of those cases. Allowing, as one must, for the different circumstances of each of the cases under consideration, the difference in sentences passed on the applicants at first instance, and those that were passed on the other offenders, is so large that the Court of Criminal Appeal was right to conclude that 'there must have been some misapplication of principle [by the sentencing judge], even though where and how is not apparent from the statement of reasons'."
Of course it remains correct, as Wilson J pointed out in Sabbah v R (Cth) [2020] NSWCCA 89 at [134] that a "glib" recitation of sentences imposed for similar offences without more will be of little or no utility to either a sentencing judge or an appellate court. Relatedly, the use of statistics alone is generally unlikely to supply the granularity necessary for critical appraisal of the closeness of cases presented as "like" or "similar" or "comparable".
It is also correct, as Wilson J observed in FL at [78], that the analysis is not aided by an uncritical assembly of a greater number of cases involving the same offence, where little or no attention is paid to the degree of similarity between the cases relied upon and the facts of the case in which the sentencing discretion is being exercised or re-exercised by an appellate court.
On the present appeal, the Applicant identified some 12 cases which it contended were sufficiently comparable to warrant the conclusion that the sentence imposed was manifestly excessive, and which it also contended would provide some guidance to this Court on any re-sentencing exercise: see Barnett; Costello v R [2017] NSWCCA 32 (Costello); Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100 (Cvetjovski); Markham v R [2007] NSWCCA 295; Mina Nashed; Morabito v R [2007] NSWCCA 126; Preston v R [2011] NSWCCA 25 (Preston); R v Clampitt-Wotton [2002] NSWCCA 383; R v Craig Besant [2003] NSWCCA 388 (Craig Besant); R v Gardiner [2004] NSWCCA 365 (Gardiner); R v Gerard De Groot [2016] NSWDC 93 (Gerard De Groot); and R v Tinker [2019] NSWDC 427.
The Applicant's detailed submissions in relation to this suite of cases form an appendix to these reasons. These cases all involved truck drivers whose dangerous driving had occasioned death. Only Cvetjovski (3 years imprisonment with a non-parole period of 2 years), Gardiner (4 years imprisonment with a non-parole period of 2 years and 6 months), Craig Besant (5 years with a non-parole period of 3 years and 6 months) and Gerard De Groot (2 years and 3 months with a non-parole period of 15 months) involved truck drivers who had illicit drugs in their system at the time of the collision occasioning death.
For this reason, these cases provide the closest comparators, although other cases identified involved a high degree of moral culpability and the presence of aggravating circumstances indicating high moral culpability, but attracted much lower penalties than in the instant case: see, in particular, Costello (aggressive merging with a poor driving record and doubtful prospects of rehabilitation - 3 years with a non-parole period of 1 year and 14 days) and Preston (deliberate risk-taking and absence of remorse - 3 years imprisonment with a non-parole period of 18 months).
In relation to Craig Besant, counsel for the Applicant submitted that the objective seriousness of the offender Mr Besant's conduct was significantly more serious than that exhibited by the Applicant, with the sentencing judge in Craig Besant observing that: "… witnesses provided compelling evidence of a course of erratic - and seriously erratic - driving on the part of the offender, stretching over a substantial period of time and over a distance in excess of fifty kilometres. Whilst it is true the driving was not erratic over every moment of that journey, the number, nature and the spread of those incidents observed by the various witnesses establishes that the incident, which occurred at Tabbimoble could not be regarded as an isolated incident but was consistent with an earlier pattern of driving and consistent, also, with the driver of that prime mover having had a number of warnings, arising out of these incidents, which would have caused any responsible motorist, let alone one driving a heavy semi-trailer, to take stock of the situation, stop and obtain sufficient rest. That course of driving ought to have made it perfectly plain to the offender that he simply could not have continued his journey no matter how urgent the necessity for him to reach Brisbane to deliver his load."
In my opinion, notwithstanding the wide discretion afforded to a sentencing judge, the sentence imposed on the Applicant was manifestly excessive. This conclusion is in part driven by the primary judge's illegitimate "findings" about the duration of the Applicant's distraction. A conclusion of manifest excess is also an almost inevitable consequence of my finding in respect of ground three, namely that the sentencing judge erred in finding that the offence was "above the midrange". Such a finding necessarily informed the ultimate sentence imposed.
I am fortified in my conclusion by a consideration of the cases relied upon by counsel for the Applicant on comparable sentences, and whilst no case is of course identical, there were sufficiently strong similarities in a number of the cases relied upon to inform the analysis and conclusion.
I would, accordingly, uphold ground five.

Ground six

Ground six is somewhat discrete from the other grounds of appeal, as it relates to the driving disqualification. It arises because of the fact that the Applicant's licence was suspended as a result of the offence from 17 March 2017 until the date of sentencing, 17 October 2019.
The Court Order Notice recording the sentencing judge's orders is expressed as follows: "The court disqualified the offender SEAN RITCHIE MOODIE from holding a driver's/rider's licence for 5 years from 17 October 2019. Section 206B of the Road Transport Act 2013 applies to the period 17/3/17 to 17/10/19. … Disqualification from holding a licence for 5 years, pursuant to s206B [of the Road Transport Act] requesting that the RMS take into account the period between 17/3/17 and 17/10/19."
The way in which the Court Order Notice is formulated is apt to, at the very least, create confusion and, on one view, to overstate the intended duration of disqualification.
The sentencing judge's plain intent was that the period of disqualification be taken into account. So much is common ground between the Applicant and the Crown. Contrary to the Court Order Notice, this was not a matter for the Roads and Maritime Services to take into account; rather, it should have been taken into account by the sentencing judge who misapprehended the operation of s 206B(2) of the Road Transport Act.
Section 205(2)(d) of the Road Transport Act required the Applicant to be automatically disqualified from holding a drivers licence for a period of three years or, pursuant to sub-section (ii), "if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification--the person is disqualified from holding a driver licence for such period as may be specified in the order."
Section 206B of the Road Transport Act provides that: "(1) This section applies where a driver licence or other authority to drive in this jurisdiction has been suspended under this Act or the statutory rules for an alleged offence. (2) A court that determines a charge for the offence (or for a related offence) is required to take into account the period of suspension when deciding on any period of disqualification from holding or obtaining a driver licence on conviction for the offence (or for the related offence). (3) An offence is related to another offence if it relates to the same act or omission that gave rise to the other offence. (4) The period of suspension satisfies all or the relevant part of any minimum period of disqualification that is or is required to be imposed under this Act on conviction for the offence (or for the related offence). Accordingly, the total of the period of suspension and of the period of disqualification is not to be less than that minimum period of disqualification. (5) The court may order that the period of disqualification ends on a day specified by the court."
The Crown accepted in written submissions that the sentencing judge intended that the Applicant be disqualified from holding a drivers licence for a period of 5 years, less the period of suspension, and that the appropriate order would have been that the Applicant be disqualified from holding a drivers licence for a period of 2 years 4 months and 20 days.
The Crown also pointed to the operation of s 206A(3) of the Road Transport Act, which provides that the "specified period of disqualification of the person is extended (by the operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification." The effect of this section (and s 206A(4) of the Road Transport Act) is that disqualification would take effect upon the Applicant's release to parole.
The sentencing judge's specified period of disqualification mirrored the starting point for his sentence for contravention of s 52A(1) of the Crimes Act. A period of 5 years' disqualification represented a significant departure from the mandatory 3 year period specified in s 205(2)(d) of the Road Transport Act, although it was open to the sentencing judge to extend this period, as his Honour did. His Honour's extension of the period was undoubtedly influenced by his views as to the objective seriousness of the s 52A(1) offence which, as has been explained above, were vitiated by the denial of procedural fairness and the other errors that have been made good under grounds two and three in particular.
In my opinion, an appropriate period of disqualification is 3 years. In practical terms, given the 2 year 7 month period of suspension that has already passed (see [97] above), the Applicant should be disqualified from driving for a period of 5 months upon his release to parole.

Re-sentencing

It is necessary, in accordance with the decision in Kentwell, for this Court to exercise the sentencing discretion afresh and to re-sentence the Applicant.
That sentencing discretion should be re-exercised having regard to the guideline judgment in Whyte, the Agreed Facts, the other evidence before the sentencing judge including, importantly, the victim impact statements of Mr Hanson's elderly mother, his sister and his nephew, and evidence relating to the offender's post-sentence circumstances or conduct. In this context, the Applicant relied on an Affidavit filed on his behalf by his solicitor, Ms Jasmina Ceic.
In approaching the task of re-sentencing in cases involving death by dangerous driving, as has frequently been said (see, for example, R v Jarad Smith [2016] NSWCCA 75 at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22 at [5]; R v Steven Barnett [2016] NSWDC 302 at [3]-[4]), judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can return a loved one. A life should never be measured simply by the punishment meted out to an offender. The sentencing discretion must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender and also reflect the objective seriousness of the offence, the offender's moral culpability, his or her prospects of rehabilitation and the likelihood or unlikelihood of future offending.
No specific submissions were advanced by counsel for the Applicant in relation to re-sentencing, although it is plain that counsel's submissions with regard to grounds one, three and five were relevant to any re-exercise of the discretion by this Court. I have already made reference at [79] above to the submission by counsel for the Applicant that he: "was a 39 year old man with a very limited criminal record. He expressed sincere remorse and contrition and he had good prospects of rehabilitation."
In point of fact, the Applicant was 36 at the time of the offence. His remorse was attested to by Dr Walton, as well as in a Sentencing Assessment Report (see [112] below). Dr Walton reported the Applicant's post-collision history of anxiety, depression and intense nightmares for which he had been prescribed an anti-depressant. Dr Walton also expressed the opinion that: "From my area of expertise all I would state is that, from a strictly clinical viewpoint, incarceration would not be required to achieve sufficient specific deterrence. Mr Moodie's contact with the criminal justice system thus far does seem to have had a salutary effect upon him, let alone what might be described as normal guilt in the aftermath of his misconduct. I imagine that general deterrence may well loom large. If Mr Moodie does sustain an immediate term of imprisonment, with his residual mood disturbance and post-traumatic stress disorder symptoms, I believe it is fair comment that he would experience at least a degree of increased onerousness compared with other prisoners. The type of psychological counselling he might require in the future is unlikely to be readily available within the prison system. The risk of recidivism would appear to be reasonably low. Mr Moodie does not have a background of general antisocial behaviour. It is correct that he does have a past history of similar drug use but, somewhat ironically, he had largely desisted with that prior to the truck accident and now that that has occurred that has reinforced his motivation to remain drug-free, if in fact he ever returns to truck driving."
The Sentencing Assessment Report included the following observations: "Insight into impact of offending • Mr Moodie appeared to display a good level of insight into the impact his actions have had on others. • Mr Moodie stated that he felt 'awful' about the situation and it had affected him daily. He reported that the victim and his family are constantly in his thoughts 'when he wakes up and prior to going to sleep'. • He stated that the incident has a personal side to it as for a period of 10 years he had carted livestock from the victim's property. … Willingness and alibility to undertake community service work • Mr Moodie expressed a willingness to undertake Community Service in the Albury area. • Enquiries with his partner confirmed that she was willing to transport him to Community Service in Albury. … Risk assessment Mr Moodie has been assessed at a Low risk of reoffending according to the Level of Service Inventory - Revised (LSI-R)."
Counsel for the Applicant did not submit that a non-custodial sentence would be appropriate by reason of the presence of methylamphetamine and amphetamine in the Applicant's blood at the time of the collision, and the concession contained in the Agreed Facts as to impairment to driving on account of the use of the methylamphetamine and amphetamine (albeit unclear as to its precise meaning). On the other hand, she emphasised the Whyte guideline factors and submitted that the fact that the distraction was agreed to be "momentary", with the implications of that for moral culpability, pointed to a far lower sentence than that actually imposed as being appropriate.
As noted at [108] above, reliance was also placed for the purposes of re-sentencing on Ms Ceic's affidavit. That affidavit was largely based upon information and belief from the Applicant's partner of some 6.5 years, Ms Jessica Sawyer, who resides in Wodonga with her three children, one aged 10 years from a former relationship, and two from her relationship with the Applicant who are now aged 5 and 2 years old. Ms Ceic deposes to Ms Sawyer's instruction that the Applicant has a close and loving relationship with all three children, the eldest of whom suffers from Autism Spectrum Disorder (level 2), Asperger's Syndrome and extreme level anxiety.
Ms Ceic's affidavit describes Ms Sawyer's financial circumstances, including her very low level of income as a casual childcare worker (less than $30,000 per year), that she had lost her position in March 2020 although may have work available after the relaxation of COVID-19 measures; the fact that the Applicant had been the main source of financial support for the family of five prior to his incarceration, in addition to the assistance he provided around the house and with the children.
The affidavit also describes the Applicant's circumstances in custody, that he had gained one of only two positions of employment within the Correctional Centre (although this had ceased since the imposition of COVID-19 related restrictions), that he had completed courses whilst in custody and was well spoken of by guards. Because of COVID-19 related restrictions, Ms Sawyer and the children have not been able to visit the Applicant for a number of months.
The affidavit also deposes to the fact that the Applicant's most recent employer has indicated that he has a position of employment as a truck mechanic available for the Applicant on his release from custody.
Counsel for the Crown submitted that no other sentence than that which was imposed should be passed, contending that: "the applicant's inattention to his responsibilities as a professional driver of a heavy vehicle travelling at a high speed and the fact that his consumption of an illegal drug, methylamphetamine, contributed to the collision, meant that his moral culpability was significant. The applicant's consumption of methylamphetamine, as a driver of a heavy vehicle, also gave rise to a particular need for general deterrence."
Counsel for the Crown also made reference to DL at [9] in support of the submission that the Court of Criminal Appeal's determination of the appropriate sentence is to be undertaken by reference to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct.
A number of observations should be made with regard to that submission.
First, the High Court in DL qualified its observation with the proviso "[e]xceptional cases apart": at [9]. The Court did not elaborate on what those exceptional cases might be.
Secondly, the High Court cited in support of the statement in DL, as relied upon by the Crown, its earlier decisions in Carroll v R [2009] HCA 13 at [24]; (2009) 83 ALJR 579 at 584 (Carroll), and Betts v R (2016) 258 CLR 420 at 427; [2016] HCA 25 at [14] (Betts).
In Carroll at [24], the Court drew a distinction between how an offender's conduct was properly to be characterised and where, on an objective scale of offending, the appellant's conduct stood, on the one hand, and discarding unchallenged factual findings as to why the offender had acted as he had, or attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death, on the other hand. The former matters were properly for the re-sentencing court to assess afresh.
In Betts at [14], the High Court said: "Forensic choices are made in the conduct of the offender's case at the sentence hearing. These include the material that is to be relied upon in mitigation of penalty and whether any of the facts are to be contested. The circumstance that the sentencing judge's discretion is vitiated by House error does not, without more, provide a reason for not holding the offender to these forensic choices. Justice does not miscarry by reason of the refusal to allow an appellant to run a new and different case on the question of re-sentence. Exceptional cases apart, the question of whether some other sentence is warranted in law is answered by consideration of the material that was before the sentencing court and any relevant evidence of post-sentence conduct."
Where an intermediate appellate court is required to resentence an offender where the sentencing judge's discretion has miscarried because of, inter alia, a denial of procedural fairness, "factual findings" made consequent upon that denial of procedural fairness must, in my opinion, fall within the category of "exceptional cases" to which the High Court referred in DL at [9]. Further, where those findings are based on inferences drawn from other material by the primary judge (cf Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9), such "findings" may be more amenable to review, at least in the exceptional context where there has been a denial of procedural fairness in the drawing of inferences, on the basis that the appellate court is in just as good a position as the sentencing judge to assess the matter.
I make these points because, to the extent that the sentencing judge could be described as having made findings of fact in relation to the duration of the distraction in those portions of the sentencing judgment that I have highlighted and extracted at [13] - [15] above, those findings should not, and in my view cannot, be properly taken into account on a re-sentencing of the Applicant.
It follows that the Applicant should be resentenced on the basis that he was momentarily distracted, albeit that that distraction was intensified by the presence of methylamphetamine and amphetamine in his blood. The effect of that admitted intensification remains unclear, however, and the evidence of both Dr Perl and Dr Sungaila does not assist in providing content or significant meaning to the concept of intensification (see at [71] above). Moreover, the Agreed Facts recorded that, whilst being interviewed by the police after the collision, the Applicant's "eyes, speech, balance and movements all appeared normal".
In making reference to the expression and concept of "momentary distraction", it is also necessary to note the sage observation of Simpson J (as her Honour then was) in R v Khatter [2000] NSWCCA 32 at [31]: "Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different incidences of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability."
To this observation it is necessary to add that a case of momentary distraction and the correlative moral culpability indicated thereby may be aggravated by a wide range of factors which may operate individually or in combination to elevate an offender's moral culpability, as the guideline judgment in Whyte recognises. Olbrich requires the existence of such adverse facts to be established beyond reasonable doubt: see [35] above. Further, where one or more of those aggravating factors are present, questions of degree may arise and an assessment of the significance of that matter or those matters must be undertaken for sentencing purposes.
Of the eleven aggravating factors identified in Whyte, as extracted at [53] above, only the following factors could be argued to increase the low level of moral culpability that usually attends a case involving "momentary distraction":

the use of methylamphetamine and amphetamine (albeit again subject to the caveat referred to at [127] above);
the Applicant's degree of sleep deprivation.

As to this last matter, the Agreed Facts are that, subject to one important matter upon which the evidence was silent, the Applicant had driven between 9.30pm to 11.30pm on 15 September 2016, had taken a half hour break, and then drove from midnight to 5.00am on 16 September 2016, had a further hour long break, and then drove for a further 3.5 hours until 9.30am when he unloaded the cattle. The Applicant did not recommence travel until 2.00pm and the collision occurred at approximately 3.10pm. The evidence did not disclose whether or not the Applicant had slept in the period between 9.30am and 2.00pm on the day of the collision. There was some suggestion in Dr Sungaila's report that the presence of methylamphetamine in the Applicant's blood may in fact have impeded the Applicant's ability to sleep during his rest period, although this opinion was not expressed with any degree of certainty.
Whilst there is a possibility that the Applicant had not slept for a total period of approximately 18 hours, including for some or all of the 4.5 hours before he commenced the final stage of his journey which ended in Mr Hanson's tragic death, this is not established on the evidence that is before the Court. Speculation either way is not appropriate in the absence of evidence.
It was agreed that the Applicant was observing the speed limit immediately prior to the collision and that he stopped and tried to come to the assistance of the deceased. There was no suggestion that the Applicant was engaged in any erratic or aggressive driving, that he was driving "competitively" or "showing off", that he had ignored warnings or was escaping police pursuit. Further, as the sentencing judge had noted: "The offender's logbook was seized and examined, with no abnormalities found. The offender's phone and another phone, which was located in the cab of the prime mover, were seized and also forensically examined. Analysis of the mobile phone used by the offender and call records obtained by police indicates that the offender was not using his mobile phone immediately prior to the collision."
Taking the Whyte factors into account, having regard to the Agreed Facts including the momentary nature of the distraction as well as the intensified degree of impairment, and bearing in mind, as emerges from Carroll, that it is for the re-sentencing court to assess objective seriousness of the offence where a House v R (1936) 55 CLR 499; [1936] HCA 40 error has been established, I would place the offence as falling below the mid-range of seriousness, although that legal characterisation is not in any way to minimise or diminish the tragic impact of the collision on the deceased Mr Hanson's family and friends.
In this context, I would adopt the sentencing judge's sensitive description of the loss suffered and sustained by Mr Hanson's family and friends: "It is clear that the deceased came from a very close and loving family, which he was a very significant part of. He provided daily support for his aged mother by way of attending each day to check on her wellbeing and to include her in the management of the property. She is now some 90 years of age and has been deprived of the benefit of her son's loving attention which would no doubt have continued for the balance of her life. The death of Mr Hanson has also had a significant impact on his sister and other relatives, as was eloquently stated to the Court by them in their Victim Impact Statements. This matter is clearly a significant tragedy for that family and has had significant consequences not only in respect of emotional trauma but in respect of displacing financial and investment arrangements that had been made in 2015. The impact on the family and those individuals in the circumstances will be permanent. However, as tragic as it is, it is no more than the anticipated consequences of offending such as this."

Orders

In my opinion, the following orders should be made: 1. Grant leave to appeal against sentence. 2. Appeal allowed. 3. Set aside the sentence imposed by the sentencing judge. 4. Sentence the applicant to a term of imprisonment comprising a non-parole period of 1 year 8 months and a balance of term of 1 year 2 months. The sentence is to date from 17 October 2019. The total sentence will conclude on 17 August 2022. The Applicant is to be released on parole upon the expiration of the non-parole period on 17 May 2021. 5. Set aside the period of licence disqualification ordered by the sentencing judge. 6. In lieu thereof, order that the Applicant be disqualified from driving for a period of 5 months from his release to parole.
DAVIES J: I have had the advantage of reading the judgment in draft of the President. I agree with his Honour's reasons and the orders that he proposes.
The reduction of the applicant's sentence as the President proposes might appear to be unduly lenient for an accident where the applicant had consumed methylamphetamine, and struck and killed Mr Hanson on a flat, straight road in daytime when the weather was fine. I can briefly state my reasons for agreeing with what is proposed.
The applicant was to be sentenced on the basis of agreed facts that referred to the cause of the accident being his momentary distraction of glancing into the rear vision mirror because of a vehicle approaching from behind. I agree with the President that the sentencing judge did not sentence him on that basis. The sentencing judge also denied the applicant procedural fairness in not alerting his counsel to the fact that he (the judge) was intending to deviate from the agreed facts by reason of the matters to which he subsequently referred in his judgment on a number of occasions.
The starting point was, therefore, that the accident occurred by virtue of a momentary distraction. That was significant because of what was said in the guideline judgments of Jurisic at 231 and Whyte at [214].
The next matter was whether there were aggravating factors which would mean that the applicant's moral culpability was high. The sentence imposed by the judge was within the range of sentences from which, according to the guideline judgments in Jurisic at 231 and Whyte at [215] to [221], one would conclude meant that his moral culpability was high.
Two such aggravating factors only were identified. The first was the use of methylamphetamine. Whilst there was no doubt that the applicant had both methylamphetamine and amphetamine in his blood, for this to be an aggravating factor it would have to be demonstrated beyond reasonable doubt that the presence and level of that drug impaired the applicant's driving. The expert called for the Crown, Dr Judith Perl, concluded that although the circumstances of the collision were highly suggestive of distraction, and the blood level of methylamphetamine indicated very recent use of it, there is insufficient information relating to his driving behaviour prior to the collision and insufficient observations of his behaviour and demeanour to determine impairment "beyond a reasonable doubt", although given his significant blood level, I would certainly expect impairment of this driving ability to have been present. The conclusion of Dr Angela Sungaila, an expert relied upon by the applicant, was that impairment was possible but not certain.
In those circumstances, it cannot be concluded beyond reasonable doubt that the applicant's driving was impaired by the methylamphetamine in his blood.
The other matter concerns his sleep deprivation. This matter is dealt with by the President in his judgment at [131] and [132]. I agree with that conclusion.
Taking those two matters into account, it cannot be said that the applicant's moral culpability was high.
None of this is intended to suggest that the offence was not a serious one, or that no account should be taken of the circumstances in which the accident occurred. Nevertheless, a proper application of the judgment in Whyte means that a lesser sentence than that imposed by the sentencing judge must be imposed. Accordingly, I agree with the sentence the President proposes.
N ADAMS J: I have had the significant advantage of reading the draft judgment of Bell P. I agree with the orders proposed by his Honour for the reasons provided. I also agree with the additional reasons of Davies J.
The difficulty in this matter arose from an agreed statement of facts which failed to identify with any precision the conduct upon which the applicant was to be sentenced. It was common ground that the collision occurred because the applicant did not see the tractor on the road until it was too late to take evasive action. The agreed statement of facts simply stated that the use of amphetamine "impaired his driving by intensifying his momentary distraction".
An agreed statement of facts is a formal admission of those facts for the purposes of sentence. But that does not mean that the sentencing judge is precluded from seeking further material if he or she forms the view that the agreed facts are inadequate for sentencing purposes: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (at 606F).
The sentencing judge in the present matter clearly did not accept the agreed facts. But instead of seeking clarification as to what was meant by the statement that the applicant's use of amphetamine "impaired his driving by intensifying his momentary distraction," his Honour sentenced the applicant on the basis that the distraction was more than momentary and that his driving was actually impaired by the use of methamphetamine. He did so without notice to the parties and in circumstances where the evidence of Dr Judith Perl and Dr Angela Sungaila did not support a finding of impairment beyond reasonable doubt.
Finally, it should be noted that my agreement that the sentence was manifestly excessive is based on a sentence reflecting the agreed facts, not those found by the sentencing judge. If indeed there was evidence to establish beyond reasonable doubt that the distraction was prolonged, that the methamphetamine had impaired his driving and that he knowingly drove in a sleep deprived condition I would not have come to the same conclusion.

APPENDIX

In Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100 the appellant was sentenced to three years imprisonment with a non-parole period of two years in very similar circumstances that of the applicant, as follows ([92]-[94]): "The trial judge sentenced the offender on the basis that he failed to manage his heavy vehicle in a manner so as to maintain the correct side of the roadway on a two-lane bridge in circumstances where it was imperative that he do so because of the dire consequences which could and did, in fact, result if he did not. When sentencing the appellant, the trial judge found that the verdict of the jury established that the appellant's account of why he had lost control of the truck had been eliminated by the prosecution as a reasonable possibility. Her Honour found that the appellant took an illegal drug on the day or days prior to driving on 11 August 2015, but was unable to be satisfied beyond reasonable doubt that in fact he was impaired at the time of the collision. The trial judge found that the appellant's criminal history was minor, although the breaching of his section 9 bonds for prior criminal activity by committing this offence was an aggravating factor to be considered in sentencing. Her Honour was correct so to conclude. The appellant started using amphetamines and 'ice' (methylamphetamine) when he was 21, which he smoked daily. The offences for which he was placed on bonds were stealing in order to obtain money for 'ice'. The trial judge made a finding of special circumstances because of the accumulation of sentences (for the offences for which he was on bonds at the time of the collision), and because the appellant would benefit from a longer period of supervision on parole after his lengthy period in custody."
While his Honour Payne JA held that the sentence of 3 years with a non-parole period of 2 years was not manifestly excessive, but rather "well within the sentencing discretion of the trial judge" ([95], Bellew and Campbell JJ agreeing), there was no suggestion that the sentence imposed was lenient in any regard. That sentence was almost 2 years less than the sentence imposed on the applicant.
In Costello v R [2017] NSWCCA 32 the offender's sentence was reduced on appeal on the basis of exceptional circumstances arising from fresh evidence dealing with the offender's partner's terminal cancer in circumstances where his partner was the mother to their 2 young children. However the case is relevant because of the sentence imposed at first instance: 3 years and 3 months with a non-parole period of 1 year and 10 months. The offender was a truck driver and collided with a cyclist causing his death, and the sentencing judge "concluded that Mr Costello's offence was serious, calling for a term of full-time imprisonment, his conduct having involved a failure to keep a proper lookout, failure to take proper evasive action to avoid a collision, and a degree of aggression when attempting to merge" ([15]). He received a discount of 15% for his plea of guilty. He was 34 years old at the time of sentence; his subjective circumstances included financial and psychological hardship including for his family ([19]); he had a poor driving record ([20]) and the sentencing judge was guarded about his prospects of rehabilitation ([21]). This Court concluded the sentence imposed was "entirely appropriate" ([23]). The starting point for Mr Costello's sentence (before the discount of 15%) was about 3 years and 10 months, being 1 year and 2 months less than the applicant's starting point. While Costello's driving was not affected by drugs or alcohol, the objective seriousness of his offence was aggravated by aggressive driving and his subjective case (at least at the time of his original sentence proceedings) was weaker than the applicant's subjective case.
In Barnett v R [2014] NSWCCA 296 (referred to in R v Gerard De Groot below) the offender was found guilty at trial of two counts of dangerous driving causing death. He was sentenced to an aggregate sentence of 3 years imprisonment with a non-parole period of 18 months, with indicative sentences of 2 years with a non-parole period of 1 year for each offence. The offender was driving a table top truck and collided with 2 vehicles parked on the side of the road encroaching on the left lane of the highway. The truck did not break before impact but swerved sharply just before the collision ([14]). The offender was not under the influence of drugs or alcohol ([16]). The sentencing judge "reasoned to the conclusion that the applicant was inattentive, and for a significant period of time" ([33]). The focus of the appeal was on the sentencing judge's findings about the applicant's period of inattention so there is little information about his subjective case. However, the indicative sentences of 2 years imposed on the offender Barnett were 3 years less than the starting point of the applicant's sentence.
In Preston v Regina [2011] NSWCCA 25 the offender was found guilty of dangerous driving occasioning death after trial. He turned his semitrailer right at a T intersection and failed to see the deceased's vehicle turning from the right. The offender was not affected by alcohol, drugs or fatigue ([6]). The sentencing judge found, correctly in the view of this Court, that the "collision was not the result of momentary inattention, but rather involved a deliberate act in running the risk that there would be a collision, knowing that there was some chance that there would be" ([30]) but this Court did not agree that the offender's moral culpability was as high as it was assessed to be by the sentencing judge and found the sentence imposed of 4 years with a non-parole period of 3 years to be manifestly excessive (at [42]). The offender was not remorseful (at [43]) but had a strong subjective case (at [44]). On appeal the offender was resentenced to 3 years imprisonment with a non-parole period of 18 months ([50], per Beazley JA, Hidden and RA Hulme JJ agreeing). That sentence is almost 2 years less than that imposed on the applicant and the offender Preston was found guilty after trial.
In Mina Nashed v Regina [2010] NSWCCA 282 the offender pleaded guilty to dangerous driving causing death and was sentenced to 3 years imprisonment with a non-parole period of 2 years, after a discount of 25%. He was driving a moving van and killed a cyclist: at the time of the collision he "was in no fit state to commence the very long intended journey from the Gold Coast to Sydney. He was very sleep deprived. He knew that he was falling asleep and on a number of occasions for a period of more than 10 minutes. He ignored those warnings and continued to drive. He could have, and should have stopped. I would be well satisfied that the applicant, notwithstanding his youth, had abandoned the responsibility which comes when driving a vehicle on the Highway" ([43]). His moral culpability was regarded as high ([40]) and there were a number of aggravating factors present ([34]). Accordingly this Court did not interfere with the sentence imposed. That sentence, with a starting point of 4 years, involved a more serious example of dangerous driving and yet was just under 1 year less than the starting point in the applicant's case.
In Markham v Regina [2007] NSWCCA 295 the offender pleaded guilty to dangerous driving occasioning death after driving his prime mover with attached trailer through a red light and colliding with the deceased's vehicle. He was initially sentenced to 6 years imprisonment with a non-parole period of 3 years Why the applicant ran the traffic light was one of the issues on appeal and was ultimately unresolved with this Court determining to uphold the appeal because of manifest excess and resentence the offence on the basis "the offence is serious, whether the accident be attributable to the applicant's distraction or his fatigue after a long journey" ([26]). The offender was 28 years old at the time of the accident with a minor criminal record and traffic record ([7]). He had good prospects of rehabilitation ([33]). The offender was resentenced to 4 years imprisonment with a non-parole period of 2 years and 3 months ([34]). Allowing for a discount of 25% the starting point was more than that imposed on the applicant, namely 5 years and 4 months, but the offender Markham's culpability was greater having ignored a red light, and the sentencing judge was guarded about his expressions of remorse because of a speeding offence that occurred after the collision ([8]).
In Morabito v Regina [2007] NSWCCA 126 the offender was found guilty after trial of 3 counts of dangerous driving causing death and 1 count of dangerous driving causing grievous bodily harm. He was driving a prime mover towing a trailer which collided with a stationary vehicle and then a further three vehicles. He was sentenced to a total term of 3 years and 3 months with a non-parole period of 15 months. For each of the dangerous driving offences he was sentenced to terms of 2 years and 6 months with varying non-parole periods. The cause of the collision was inattention that was more than momentary such that "it was sufficient to place him in a situation where he could not avoid a collision which was otherwise, in my view, entirely avoidable" ([53]) but the offender's moral culpability was low and did not amount to an abandonment of responsibility ([54]). The offender's subjective case was described as "powerful" (at [48]). However despite the similarities between this case and the applicant's, and the offender Morabito's total sentence being for 4 offences, it was still 1 year and 9 months less than the applicant's starting point.
In R v Gardiner [2004] NSWCCA 365 the offender unsuccessfully appealed a sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months after being found guilty at trial of dangerous driving occasioning death. The offender's semitrailer collided with the rear of the deceased's vehicle which was also travelling on the highway in the same direction as the semitrailer. The offender did not stop after the collision until signalled to do so by another truck driver ([9]). The offender's blood "contained a level of amphetamine of less than 0.02 milligrams per litre and a level of methamphetamine of 0.11 milligrams per litre" ([5]). This Court summarised the objective seriousness as "very serious" ([29]) observing "the applicant had taken double the normal therapeutic dose of the drugs involved, where he was under the influence of the drugs at the time of the collision, where he was driving a heavy prime mover and attached trailer at a speed of at least 100 kph and he drove into the back of the deceased's Land Rover utility with force sending it off the road hitting signs and fixtures on the side of the road with the driver being killed" ([28]). His record was limited to traffic offences ([31]). He otherwise had a strong subjective case and was remorseful. In rejecting a ground of appeal that the sentence was manifestly excessive this Court observed "[t]he objective criminality of the offence is high and general deterrence is an important aspect of this sentence. This case stands as a solemn warning to any driver of heavy vehicles not to take drugs which have not been prescribed by a medical practitioner" (at [48]). The sentence imposed was 1 year less than the starting point of the applicant's sentence.
In R v Craig Besant [2003] NSWCCA 388 the offender was sentenced for 2 offences of dangerous driving occasioning death to a total effective term of 6 years imprisonment with a non-parole period of 4 years. On appeal his non-parole period was reduced to 3 years and 6 months by reason of his subjective case. For each offence he received 5 years imprisonment (unchanged on appeal). The offender's conduct revealed an "extremely high level" of moral culpability ([7]) where the collision occurred when the offender was asleep while driving his semitrailer ([9]). He tested positive for amphetamines and the sentencing judge found "the principal cause of the applicant's fatigue was his lack of sleep caused by working all day and driving through the night with inadequate rest stops during his journey", with amphetamine use contributing to his fatigue ([12]). The offender's erratic driving occurred over 50 kilometres ([13]) and a number of people were put at risk ([14]-[15]). The offender must have known of his fatigue and danger to other road users ([16]). As for the applicant the offender's plea was entered at a late stage and considered as having limited utilitarian value and the offender had genuine remorse ([27]). However the objective seriousness of the offender Besant's conduct was significantly more serious than that exhibited by the applicant, with the sentencing judge observing, "Those witnesses provided compelling evidence of a course of erratic - and seriously erratic - driving on the part of the offender, stretching over a substantial period of time and over a distance in excess of fifty kilometres. Whilst it is true the driving was not erratic over every moment of that journey, the number, nature and the spread of those incidents observed by the various witnesses establishes that the incident, which occurred at Tabbimoble could not be regarded as an isolated incident but was consistent with an earlier pattern of driving and consistent, also, with the driver of that prime mover having had a number of warnings, arising out of these incidents, which would have caused any responsible motorist, let alone one driving a heavy semi-trailer, to take stock of the situation, stop and obtain sufficient rest. That course of driving ought to have made it perfectly plain to the offender that he simply could not have continued his journey no matter how urgent the necessity for him to reach Brisbane to deliver his load." ([17]) However the same head sentence was imposed on the offender Besant as the applicant.
In R v Clampitt-Wotton [2002] NSWCCA 383, a Crown appeal against inadequacy, the offender was sentenced for 2 charges of dangerous driving occasioning death and 2 further charges of dangerous driving occasioning grievous bodily harm. The offender was driving a heavy truck and failed to stop at an intersection colliding with the rear of a car containing a mother and her 4 daughters. Two daughters were killed and two were seriously injured. "The weather at the time was fine, the road was dry, and visibility was unobstructed. The respondent was a truck driver by profession. It was not the first time he had driven the truck involved in the collision and he was familiar with the route along Cowpastures Road. He did not apply his brakes before the collision. He was not driving at an excessive speed and, if he had been keeping a proper look out, he should have been able to stop in time." ([5]) The offender did not plead guilty and was not young ([17]) but he had a strong subjective case including psychological effects as a result of the collision ([26]). Noting the principle of double jeopardy in Crown appeals applied such that the sentence imposed was not of the severity he might otherwise have faced, for all 4 offences the offender received a total sentence of 4 years imprisonment with a non-parole period of 2 years - just under 1 year less than the starting point of the applicant's sentence where there was only 1 victim.
There are two District Court cases which also consider a similar factual matrix to the applicant's offence. They are summarised below but it is accepted they carry less weight than sentences that have been reviewed by an intermediate appellate court (DPP (Cth) v De La Rosa [2010] NSWCCA 194 per Basten JA at [144]).
In R v Tinker [2019] NSWDC 427 the offender was found guilty after trial of dangerous driving occasioning death and two less serious offences of causing bodily harm by wilful neglect. His truck collided with a car containing the deceased, the driver and another passenger which was stopped at a traffic light. The cause of the collision was inattention "for a sufficiently long time that he failed to notice, at the relevant time, that the Sandiford vehicle was still stopped at the lights such that he had sufficient time to take evasive action by way of braking or swerving" ([15]). His moral culpability was neither high nor low ([17]). He was 30 years old at the time of the offence, 33 years old at sentence, and had no criminal record. He was professional driver and did not have an unblemished traffic record ([18]). Despite his pleas of not guilty he expressed remorse, had low risk of re-offending and strong family support, and suffered ongoing psychological impacts as a result of the offence ([22], [23] and [25]). Judge W Hunt sentenced the offender to 3 years imprisonment with a non-parole period of 18 months for the offence of drive dangerously occasioning death ([38]). For the less serious offences of causing bodily harm he received fixed terms of imprisonment of 6 months ([37]). His total sentence was 1 year and 6 months less than the sentence imposed on the applicant, where the offender Tinker received no discount for his plea of guilty and applicant received a 5% discount for his plea.
In R v Gerard De Groot [2016] NSWDC 93 the offender pleaded guilty to offences of dangerous driving causing death and drive with illicit drug present (cannabis and methylamphetamine) and received a sentence of 2 years and 3 months with a non-parole period of 15 months. The offender was driving his truck and failed to avoid 2 cars parked on the road shoulder and protruding 50cm into lane 1 of the roadway. The Crown conceded that the methylamphetamine present in the offender's blood did not play any part in the offender's driving, but as with the applicant "there was no evidence of braking by the offender prior to the collision, and no apparent reason for his failure to have seen the victim and the vehicles prior to the collision, other than inattention or distraction" ([10]). His Honour Judge Mahony SC found the objective seriousness below mid-range "but not very far below it" ([57]). The offender had a minor criminal record and driving record ([11] and [12]) and was remorseful ([65]). The offender received a discount of 25% for his plea so the starting point was 3 years. That is 2 years less than the applicant's starting point.

Amendments 17 July 2020 - Change made to [87] in second sentence, the word "excessive" is deleted and replaced by "inadequate". 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: 17 July 2020

Crimes Act 1900(NSW)s 52A(1)

Crimes (Sentencing Procedure) Act 1999(NSW)ss 5, 10, 10A, 44, Pt

Road Transport Act 2013(NSW)ss 111(1)(a), 205(2)(d), 206A, 206B

At a glance

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Cases Cited (64)

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