John Joseph Waddington is before the court today for sentence. He has pleaded guilty to a charge of negligent driving occasioning grievous bodily harm contrary to s 117(1)(b) of the Road Transport Act 2013. The matter came before me in a busy list at the Downing Centre Local Court on 19 July 2016. At that time I heard submissions from Mr Robinson, Solicitor, on behalf of the defendant. I then adjourned the matter until today so the sentencing task could be completed.
The charges arise out of serious motor vehicle collision that occurred at Narrandera on 20 September 2015. The matter initially came before the Local Court at Leeton on 19 February 2016. At that time a plea of not guilty was entered. The matter then proceeded in that court and in the Local Court at Griffith until it was transferred to the Downing Centre Local Court upon a plea of guilty being entered. That occurred on 18 May 2016, being the fifth appearance before the court. A plea of guilty was not entered at the first available opportunity and accordingly the discount on penalty for that plea must be modified from what would otherwise have been appropriate had it been entered at the earliest possible time. I am of the view that an appropriate discount for the plea of guilty is in an amount of 15%, and note that it is permissible for the application of that discount to result in a different type of sentence being imposed than might otherwise have been the case: R v Borkowski [2009] NSWCCA 102 at [32].
The defendant is aged 65 years and is a heavy vehicle driver. In the early afternoon of Sunday 20 September 2015 at Narrandera, he was driving a very large truck which had two vehicle transport trailers attached. Upon those trailers were 11 motor vehicles. The defendant was transporting those vehicles to South Australia. I was told by Mr Robinson that the total weight of the vehicle being driven by the defendant was in the order of 50 tonnes. At the same time and place the victim in this matter Amanda Mohr was riding her Kawasaki 250 motorcycle. Both vehicles were being driven along the Sturt Highway towards Hay. The defendant's vehicle was travelling behind Ms Mohr's motorcycle and had been for some time. The Sturt Highway is generally a single lane in each direction in the area. At about 1.54pm, the two vehicles came into collision in circumstances which give rise to the charge before the court.
The facts reveal that at the collision scene the Sturt Highway curves right and that at the end of that curve is a right hand turn into Innisvale Lane. That right hand turn is clearly signposted. The victim was travelling west along the Sturt Highway with the intention of negotiating the right hand turn at Innisvale Lane. At the point where Innisvale Lane runs off the Sturt Highway, a lane opens in a west bound direction to allow vehicles in the position of the defendant's to pass on the left vehicles that are turning right. As Ms Mohr's motorcycle slowed down preparing to make the right hand turn into Innisvale Lane, the vehicle driven by the defendant failed to slow and or stop appropriately and in an attempt to avoid a rear-end collision which may well have had fatal consequences, made a hard right turn into the east bound traffic lane. During this manoeuvre the rear passenger side of the defendant's truck and trailer clipped the right side of Ms Mohr's motorcycle breaking the handle bar and causing her serious injuries. The defendant's truck managed to correct itself and stopped in the west bound lane approximately 100 metres from the point of the collision. Local persons and emergency services attended and Ms Mohr was flown to Canberra hospital. She was placed into an induced coma and remained in hospital for 8 days. Sadly she has suffered a severe injury to her right hand and she will never regain the full use of it. Her hand was degloved and she underwent a number of surgeries to correct the damage. I will return to the issue of Ms Mohr's injury and the effect upon her in due course.
Mr Robinson who appeared for the defendant noted that the accident had occurred on a sweeping right hand bend and that Ms Mohr had moved into the middle of the road prior to making what would have been a sweeping right hand turn into Innisvale Lane. He told me that the defendant had noticed her slowing and was aware that there was a right hand turn on that part of the road. He was apparently familiar with the roadway.
In his ERISP the defendant said:
Suddenly, very suddenly, I was right up close to the bike. I can only think that the bike rider must've slowed very fast and I was, and the bike seemed to be in the middle of the road. There didn't seem to be any indication that the bike rider was turning. I now know that turn off is there. There didn't seem to be any indication that she was turning or going anywhere.
I interpolate that the victim says in her Victim Impact Statement that she had put her blinker on to turn right prior to the collision. I was told by Mr Robinson, and this was not challenged by Sgt Alzaim, that later examination of the motorcycle by police revealed that the blinker switch on the bike was not turned on. The facts tendered are silent on the matter and I cannot completely discount that this positioning of the blinker switch may have been the result of the significant impact which had occurred. In any event, the resolution of this fact does not effect in any meaningful way my assessment of the factual basis upon which I proceed to sentence.
Mr Robinson told me that if his client had braked, his truck would have jack-knifed and may well have slid towards Ms Mohr, thus causing her further serious injury or worse. He says further that Ms Mohr's movement towards the centre of the roadway prior to making her right hand turn meant that his client was unaware if she was pulling over to the left side of the road, and that in those circumstances it was not appropriate for him to pass her in the lane specifically designated for that purpose. He also says that had he done so he would have run the risk of tipping his truck over. The defendant contends in essence, that he had no choice but to seek to pass the motorcycle on the right as he did. His version is that as he passed the motorcycle, Ms Mohr turned her bike into him and struck the side of the truck. Of course that version is not consistent with the facts that were tendered and upon which I must proceed to sentence. Those facts suggest and I accept, that during the manoeuvre by the defendant seeking to pass Ms Mohr on the right, his truck and trailer "clipped" the right side of Ms Mohr's motorcycle. The facts clearly contend that the truck struck Ms Mohr, not that she struck the truck. The defendant through his solicitor has conceded that he should not have crossed to the side of the road as he did and that it was this action which constituted his negligence.
In my view the defendant's negligence is not limited to the manner of driving that he concedes. Whilst the defendant's action in seeking to pass Ms Mohr on the right hand side as he did is plainly negligent, it is also a function of other acts of negligence including his failing to keep an appropriate and proper lookout in all the circumstances, his failing to travel an appropriate and safe distance behind the motorcycle and of his failing to travel at a speed that was, in all the prevailing circumstances appropriate. This is so even if he was, as he contends, travelling within the sign posted speed limit. The fact that a person is driving within a speed limit does not mean that he or she is travelling at an appropriate speed in all the circumstances. These features of the defendant's driving which are to be considered in combination, involve a serious departure by him from the standard of care for other road users that is expected of an ordinary and prudent driver.
As in any matter it is necessary for me to make an assessment of the objective seriousness of the offending. This is to be done in part by having regard to the maximum penalty that has been prescribed by the Parliament. In this case, the charge of negligent driving occasioning grievous bodily harm carries with it upon conviction a maximum penalty of 20 penalty units and/or imprisonment for 9 months. The assessment will also have regard to the degree of negligence involved in the driving and the extent of the injuries that result: Gorladenchearau v R (2011) 34 VR 149. Given all of the circumstances, I find that the objective seriousness of the offending is at or about the mid-range. The fact that Parliament has deemed it appropriate to legislate that a term of imprisonment might be imposed for this offence indicates the seriousness with which the offence is to be regarded: R v Oliver (1980) 7 A Crim R 174.
The defendant is a man of prior good character. He has no prior criminal history. Of course, prior good character is to be given less weight in cases where general deterrence is important, the offence is serious and the offence is one often committed by persons of otherwise good character: R v Kennedy [2000] NSWCCA 527. He has a traffic record that extends over 48 years and while the record provided to the court stretches over a period of only 42 years, I am told and accept that there are no major offences on his record. Over the period that he has been driving (as disclosed by his traffic record) there are 17 entries where traffic infringement notices have been issued. Over such a lengthy period of time and given the fact that he has been employed as a long haul truck driver for more than 20 years, his traffic record is in my view a reasonable one.
Tendered on the defendant's behalf was a document dated 9 July 2016 from Able Psychology and Assessment Services of West Gosford. That document indicated that the defendant had been referred by his general practitioner to Ms Angela Barry a Clinical and Health Psychologist for treatment of anxiety and depression under a mental health care plan. I note that his first appointment took place on 7 July 2016 just twelve days before his matter was listed for sentence. The report indicates that this was the first occasion that he had been referred to a psychologist. I have carefully read the psychologist's report and accept that the defendant is genuinely remorseful and feels real empathy for Ms Mohr. I do however note that the defendant has apparently reported to the psychologist that he was "shocked and demoralised by the misinterpretation of events adopted by Police in their Fact Sheet". This indicates to me some reluctance by the defendant to fully accept his responsibility for the collision and its consequences. The effect of the accident upon him and the police retention of his log books for a number of months, coupled with restrictions placed on him by his employer, have meant that he has not been able to resume his employment as a driver on regular long haul trips. This has further added to his anxiety and has caused financial loss. He has been diagnosed by the psychologist as suffering from post-traumatic stress disorder and I have no reason to doubt that diagnosis.
I note that the defendant has attended a Traffic Offender Intervention Program and I accept that like most other people who attend that program, he will have taken a good deal from it.
I have been provided with a Victim Impact Statement by Ms Mohr dated 16 June 2016. While the statutory scheme for such statements set out within the Crimes (Sentencing Procedure) Act 1999 does not have application in this matter, I am nevertheless required to have regard to the effect of the crime on the victim. Section 3A(g) of the Crimes (Sentencing Procedure) Act provides that one of the purposes for which a court may impose a sentence on an defendant is "to recognise the harm done to the victim of the crime and the community". Similarly, section 21A(2)(g) invites the court to a consideration of the injury, emotional harm and loss or damage caused by an offence.
There can be no doubt in this case that the harm suffered by Ms Mohr as a consequence of the defendant's criminal conduct has been and continues to be substantial. Her statement indicates that she suffered injuries to her head, neck, a fractured sternum and severe injuries to her right arm and hand. She underwent surgery to her right hand to repair and graft the severe degloving injury that she had sustained. That surgery involved the insertion of transferred K-wires through her right index metacarpal finger, open reduction and fixation of internal plates. She has poor function of the ring and little fingers on her right hand and describes those fingers as "essentially useless". It has been suggested to her that her right little finger be amputated and that she requires further surgery on her right middle finger. In addition, she has suffered from dizziness, headaches, slurred speech, sensitivity to light, blurred vision and a ringing in her ears since the accident. These issues have required ongoing assessment and treatment by the South West Pain Injury Rehabilitation Unit. She is also said to have symptoms of post-traumatic stress disorder, is extremely depressed and has been referred for psychological counselling. She has ongoing severe pain. Prior to the accident she was right handed. It is not hard to appreciate the level of pain, discomfort and distress to which she has been exposed as a consequence of her injury. No doubt even the simplest of daily tasks would be difficult, particularly when one bears in mind the fact that she is a young woman of 34 years with 3 children who she provides for in the absence of support from a partner. She has attempted to compensate for the loss of function in her right hand by utilising her left hand however this is not without problems.
Mr Robinson in his careful submissions urged me to consider dealing with the matter without recording a conviction and by the imposition of a bond pursuant to section 10 of the Crimes (Sentencing Procedure) Act. I note that the scope for the application of section 10 lessens when the offence itself is objectively serious, and factors such as general deterrence and denunciation are significant matters to be borne in mind. In the course of his address, Mr Robinson provided me with Sentencing Statistics for the offence as maintained by the Judicial Commission. These statistics demonstrate that for all offenders sentenced in the period July 2013 to December 2015 (a sample of 446), 29% were disposed of without the recording of a conviction, with the vast majority, 27%, being dealt with by section 10 bonds. By logical inference, 71% of all matters were disposed of in such a way as to result in a conviction being recorded. The statistics also indicate that for offenders who more closely mirror this defendant, with one charge only, no priors, a plea of guilty and aged more than 50 years, a sample of 106 cases, 47% were dealt with without conviction, 5% through a section 10 dismissal and 42% by the imposition of a section 10 bond. I have had cautious regard to these sentencing statistics consistent with what the Court of Criminal Appeal has indicated is the proper approach to be taken: Skocic v R [2014] NSWCCA 225 per Bellew J, Macfarlan JA and Fullerton J agreeing.
In considering Mr Robinson's submission, and in dealing overall with the sentence to be imposed, I am required to and have had regard to section 3A of the Crimes (Sentencing Procedure) Act, which sets out the seven purposes for which a court may impose a sentence on an offender. They are:
1. To ensure that the offender is adequately punished for the offence;
2. To prevent crime by deterring the offender and other persons from committing similar offences;
3. To protect the community from the offender;
4. To promote the rehabilitation of the offender;
5. To make the offender accountable for his actions;
6. To denounce the conduct of the offender;
7. To recognise the harm done to the victim of the crime and to the community.
The purpose of ensuring adequate punishment guards against the imposition of both unduly lenient and unduly harsh sentences. Put in simple terms, the punishment ought to fit the crime. In considering this purpose I am required to have regard to the objective seriousness of the offending. As I have already remarked I have determined the objective seriousness to be at or about the mid-range. There is also, it seems to me, a need for the court to impose a penalty that acts as a deterrent both to the defendant and others. Whilst I have concluded, given the defendant's lack of antecedent history, that the issue of specific deterrence has little role to play in this sentencing task, there is nonetheless a role for general deterrence. I am of the view that the purposes of community protection, accountability and denunciation also have a role to play. The defendant's management of the massive motor vehicle that he was in charge of at the relevant time fell so far short of what ought be expected of a reasonable and prudent driver, that the court, in the place of the community must, by the sentence imposed, express its complete abhorrence. It does not seem to me controversial that those who are licensed to drive vehicles of the type that the defendant was licensed to drive are required to exercise the utmost skill and attention in doing so. Drivers in these circumstances must be hyper vigilant. When they fail to manage the vehicle under their control as they ought, the consequences to innocent members of the community can be severe, as evidenced by this case.
I am satisfied that the defendant has good prospects of rehabilitation and that the orders I will shortly impose will promote that. I have already made some comment on the harm done to the victim. The injuries that she has sustained will undoubtedly have lengthy and ongoing consequences for her.
When considering the purposes of section 3A it is in my view clear that this is not a case that would appropriately be dealt with in the absence of the recording of a conviction. To take such a course would be unduly lenient and would not properly reflect what the Parliament has said are the purposes in respect of which a sentence is to be imposed, and the overall objective seriousness of the offending.
Balancing all of the relevant factors I have concluded that the matter can be finalised by the imposition of a fine and with the defendant entering into a bond to be of good behaviour pursuant to the provisions of section 9 of the Crimes (Sentencing Procedure) Act 1999. The conclusion I have reached in this regard means that I must also turn my mind to the question of the disqualification from driving of the defendant. The question I must ask myself is "Are there reasons that would entitle me to depart from the automatic period of disqualification?" I have reached the conclusion, having regard to the generally reasonable traffic record of the defendant, his attendance at a Traffic Offender Intervention Program and his good prospects of rehabilitation that I would be entitled in all the circumstances to so depart.
The Orders of the Court are as follows:
1. The defendant is convicted. He is fined the sum of $1,100.
2. Further, he is ordered to enter into a bond pursuant to the provisions of section 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for a period of 18 months. The conditions of the bond are that he is to be of good behaviour and appear for sentence if called upon and that he is to notify the Registrar of this Court of any change of his residential address.
3. In addition, the defendant is to be disqualified from holding or obtaining a driver's licence pursuant to the Road Transport legislation for a period of 15 months.
Deputy Chief Magistrate C O'Brien
Downing Centre Local Court
1 August 2016
[2]
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Decision last updated: 31 August 2016