CRIMINAL LAW - SENTENCING - judgment and punishment - negligent driving occasioning death - heavy vehicle

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6

Crimes Act 1900 (ACT), s 29

Crimes (Sentencing) Act 2005 (ACT)

Barbaro v The Queen [2012] VSCA 288

DPP v Spong [2018] ACTCA 37

Lutz v KJ [2016] ACTSC 200

Omari v Moore [2013] ACTSC 9

Present v The Queen [2011] NSWCCA 25

R v Hamdan (No 3) [2022] ACTSC 326

R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, 28 October 2010)

R v Chancellor [2019] ACTSC 191

R v Livas (No 2) [2020] ACTSC 116

R v Murray [2008] ACTSC 115

The Police v Hutchison (Unreported, Magistrates Court of the Australian Capital Territory, 4 August 2022)

The Queen v Kilic [2016] HCA 48

Wilkins v Hague [2011] ACTSC 189

1. On 11 March 2025 the Defendant, Mr John Alfaro, was the driver of a Transport Canberra public bus undertaking a route in Nicholls. Nearing 8am he was in a queue of vehicles on Gold Creek Road between the northbound and southbound lanes of the Barton Highway. The traffic in the southbound lanes was heavy but flowing well.
2. Mr Alfaro was waiting to cross the southbound lanes of the Barton Highway into Gold Creek. There was both a stop sign and stop line at the intersection of Gold Creek Road and the Barton Highway.
3. Once Mr Alfaro was the second vehicle in the queue, he waited at least two minutes and 48 seconds to proceed. While waiting, Mr Alfaro looked to his left (in the direction of oncoming traffic from the southbound lanes of the Barton Highway) several times. However, in the 10 seconds prior to him moving forward to cross over the Barton Highway he did not. He looked down and rubbed his eyes.
4. Noticing the car in front of him had left the stop line on Gold Creek Road to cross the southbound lanes of the Barton Highway, Mr Alfaro followed two seconds afterwards. He looked left as he accelerated towards the stop line, but he did not stop at the stop line to make sure that there were no oncoming vehicles. As he crossed the stop line he stopped looking left and looked straight ahead.
5. Mr Alfaro accepts that he did not undertake a sufficient check to ensure that there were no vehicles close by and that he did not stop at the stop line as he was legally required to do. The consequence of those failures was tragic.
6. Ms Uqasha Imran was riding her motorcycle southbound on the Barton Highway at the time, travelling near the posted speed limit of 80 km/hr. She was approximately 40 metres away when Mr Alfaro crossed the stop line and there was no way for her to avoid colliding with the bus. It completely blocked the southbound lanes by the time Ms Imran reached the bus about 1.5 seconds later.
7. Witnesses to whom police spoke, both passengers on the bus and other motorists, were of the view that it was clearly not possible for Mr Alfaro to safely cross the road given how close Ms Imran was. Mr Alfaro did not see Ms Imran's vehicle.
8. Ms Imran collided with the bus just behind the front left wheel arch. She was thrown into the side of the bus before landing on the road. Ms Imran was taken to hospital in a critical condition, but she did not survive her injuries. She passed away three days later, on 14 March 2025, as a result of a traumatic brain injury.
9. Mr Alfaro was charged with, and pleaded guilty to, negligent driving occasioning death. That offence carries a maximum penalty of 200 PU ($32,000) and/or imprisonment for two years (s 6(1)(a), Road Transport (Safety and Traffic Management) Act 1999).
10. I am required to sentence Mr Alfaro for his conduct. In doing so, I must judge Mr Alfaro 'not merely according to the awfulness of the tragic results of his actions, but in accordance with the law and principles of sentence' (R v Creighton (Unreported, Supreme Court of the Australian Capital Territory, 28 October 2010, Refshauge J) (R v Creighton)).

1. Negligent driving for the purposes of s 6 of the Road Transport (Safety and Traffic Management) Act 1999 involves a departure from the standard of care to be expected of the ordinary prudent driver in the circumstances (DPP v Spong [2018] ACTCA 37 at [63], citing Wilkins v Hague [2011] ACTSC 189 at [68]; R v Murray [2008] ACTSC 115 at [33]).
2. The objective seriousness of Mr Alfaro's conduct thus requires an evaluation of the degree to which he departed from the proper standard of driving. In undertaking that evaluation, the court must have regard to all the circumstances, including the nature, condition and use of the road where the offence occurred and the volume of traffic on (or that might reasonably be expected to have been on) the road (R v Murray [2008] ACTSC 115 at [32]; Omari v Moore [2013] ACTSC 9).
3. However, in evaluating the degree to which Mr Alfaro departed from the proper standard of driving, his conduct is not to be compared with the worst example of driving, but with the worst kind of negligent driving captured by s 6 of the Road Transport (Safety and Traffic Management) Act 1999 (Lutz v KJ [2016] ACTSC 200 at [41]). There is a separate offence, of culpable driving (relevantly defined to mean driving in a way that fails, to a gross degree, to observe the standard of care which a reasonable person would have observed in all the circumstances) which captures driving of the worst kind. It carries a much higher maximum penalty, of 14 years' imprisonment, if the driving causes the death of another person (s 29(2), Crimes Act 1900).
4. While Mr Alfaro's negligence caused the death of another human being, that is an element of every offence under s 6(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999 and it is not a distinguishing feature on sentence (Omari v Moore [2013] ACTSC 9; Lutz v JK [2016] ACTSC 200).

Assessment of objective serious of Mr Alfaro's conduct

1. Mr Alfaro's offending conduct was objectively serious insofar as an offence against s 6 of the Road Transport (Safety and Traffic Management) Act 1999 is concerned. The parties agreed that it was not the most serious example of negligent driving but there was nevertheless a substantial departure from the standard of care Mr Alfaro was required to exercise in the circumstances. His driving involved a high degree of negligence.
2. The factors that contribute towards the objective seriousness of Mr Alfaro's conduct are as follows:

(a) Mr Alfaro was tasked with crossing an arterial road. There was heavy, albeit well-flowing, traffic, and Mr Alfaro was on notice as to the need to keep a proper lookout for oncoming vehicles before crossing the road.

(b) This was not a case in which Mr Alfaro simply misjudged his capacity to drive the bus across the road before oncoming traffic reached him but instead involved a disregard for a fundamental road safety obligation. Mr Alfaro failed to comply with his legal obligation to stop at the stop line and check for oncoming traffic before proceeding.

(c) The need to stop at the stop line and check for oncoming traffic was, beyond the legal requirement, a very important practical step that Mr Alfaro needed to take because he was driving a bus. A bus is not a vehicle that can easily accelerate to avoid a collision and it is a long vehicle that other motorists cannot easily drive around. In Ms Imran's case, there was no way for her to avoid colliding with the bus because it occupied both of the southbound lanes of the Barton Highway at the time she collided with it. Further, as Mr Alfaro knew, the a-pillar and doorframes at the front-left of the bus partially obstruct the driver's view. Mr Alfaro explained to police how he had to manoeuvre his body when he needed to look through the front doors to check for traffic.

(d) Relatedly, Mr Alfaro was a professional bus driver. As a driver of a heavy vehicle, Mr Alfaro bore considerable responsibility with respect to the safety of other road users, given the vulnerability of other road users to any want of care on Mr Alfaro's part (R v Livas (No 2) [2020] ACTSC 116). In that respect, there was a heavy onus on him, not only to drive safely but also to drive in accordance with road rules (Present v The Queen [2011] NSWCCA 25 at [23] - [24]).

(e) The risk that Mr Alfaro posed to users of the southbound lanes of the Barton Highway, and to Ms Imran in particular, as a result of his failure to stop at the stop line and check for oncoming traffic, was compounded by the fact that he failed to pay any attention to oncoming traffic in the 10 seconds before he started driving the bus towards the stop line and across the road. While Mr Alfaro did look in the direction of oncoming traffic as he accelerated, the period for which he did so was short and clearly inadequate having regard to the circumstances that I have set out in the preceding sub-paragraphs.

(f) Finally, had Mr Alfaro stopped at the stop line and performed a proper check for oncoming vehicles, he would have seen Ms Imran who, in any event, would likely have passed by Mr Alfaro by the time he started to drive the bus forward again, given that she was only 1.5 seconds away when Mr Alfaro crossed the stop line. That is, Mr Alfaro's negligence was the sole cause of Ms Imran's death.

1. Ms Imran's parents read victim impact statements on behalf of Ms Imran and themselves. Their pain was palpable. Mrs Imran needed to be consoled when reading her statement and could not finish it herself.
2. At 22 years of age, Ms Imran had a promising future. She had started her career, following her father's footsteps in the financial services industry. She was involved in a taekwondo club, both as a participant and a teacher. She dreamed of getting married and travelling.
3. The promise that her future held will, of course, never be realised.
4. Ms Imran's passing has also left an irreplaceable hole in the lives of her family and friends. Her mother spoke of the ache that she has endured, and of the loss of companionship and support that she has felt, since the incident. She also referred to the pain and loss that Ms Imran's siblings have experienced. She said that they had lost their mentor, friend and anchor. She noted how Ms Imran's colleagues and students at her taekwondo club miss her leadership and presence.
5. Ms Imran's father said that his heart 'has been squished and the life has been sucked out of' him since the incident. He spoke of all the moments and activities in a day that remind him of Ms Imran and how hard it is for him to get through each day. He said that Ms Imran's siblings 'have progressed in their lives but the joy isn't the same'. He said that their happiness has been dampened by the loss of their sister. He similarly described how the joy he used to see in Ms Imran's friends has been replaced with sorrow.
6. Ms Imran's father was proud to say, however, that even in death she contributed to her community, with her organ donations saving four lives.

1. Mr Alfaro is a 53 year old man who was born in the Philippines. He is married with two children, aged 19 and 20. Mr Alfaro and his family moved to Australia in 2008 and he acquired Australian citizenship in 2012.
2. In a character reference that Mr Alfaro's wife wrote, she described Mr Alfaro as a very hard working and responsible man, and an ideal husband and father. She said that she and Mr Alfaro moved to Australia for a better future for their family.
3. Mr Alfaro's brother-in-law similarly described Mr Alfaro as a person of integrity, compassion and responsibility, who cares for people. There is no dispute that Mr Alfaro is a person of good character.
4. For the majority of his working career in the Philippines, Mr Alfaro worked for the local government's legislative assembly. On immigrating to Australia, Mr Alfaro worked as a cleaner and occasional truck driver for 11 years. He gained employment as a Transport Canberra bus driver in 2020. Subsequent to the incident the subject of these proceedings, he has been transferred to another ACT government role, still working full time.
5. Mr Alfaro enjoys a stable financial situation. He supports his family in Australia as well as financially supporting his mother in the Philippines.

1. In Barbaro v The Queen [2012] VSCA 288, the court said, at [39], that:

If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind enhances prospects of rehabilitation and reduces the need for specific deterrence ...

1. There is no doubt that Mr Alfaro is remorseful.
2. Mr Alfaro's immediate reaction following the incident was distress. Following the incident he has felt sadness, sorrow and depression, primarily reflecting on the impact of the incident on Ms Imran's family. Throughout his interview with the authors of the Court Duty Report, Mr Alfaro spoke about Ms Imran and her family and verbalised remorse and empathy for them.
3. Mr Alfaro's wife wrote a letter to the court that described the distress her family has felt as a result of the incident. She wrote that Mr Alfaro said that there were no words to describe his sadness, profound sympathy and sorrow for Ms Imran's family. She said that Ms Imran would always be in her family's prayers.

1. Mr Alfaro has no criminal history.
2. The absence of prior criminal convictions is a mitigating factor on sentence. It is clear from the absence of any antecedents and from Mr Alfaro's otherwise good character that the present offence is an uncharacteristic aberration and that he is entitled to leniency in the sentence that I impose.

1. Mr Alfaro entered a plea of guilty at the earliest opportunity.
2. I have allowed a 25% discount on Mr Alfaro's sentence for the utilitarian value of Mr Alfaro's early plea of guilty.

1. In R v Chancellor [2019] ACTSC 191, Mossop J observed that the cases his Honour had considered did not disclose any coherent pattern of significance for sentencing the offender before him for a negligent driving occasioning death offence. In my view, no discernible sentencing pattern has emerged in the cases that have been decided since R v Chancellor either.
2. The only consistent position taken by the courts, both before and after R v Chancellor, is that these are not the kinds of cases where the purposes of sentencing necessarily require an offender with a strong subjective case to serve any sentence of imprisonment by full-time custody. Each of the sentences of imprisonment that have been imposed in the cases I considered were suspended or, in one case, was to be served by an Intensive Corrections Order.
3. While acknowledging that there is no particular sentencing practice, the Prosecution drew my attention to a number of sentencing decisions by way of comparison to the present case. I have considered those cases below.
4. In doing so, I note, as the High Court observed in The Queen v Kilic [2016] HCA 48, at [22], that while examination of cases in which sentences have been determined for the same offence 'may provide a relevant "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing and in the application of relevant sentencing principles', the requirement to have regard to sentences imposed in those cases 'does not mean that the range of sentences imposed in the past fixes the boundaries within which future sentences must be passed; rather the range of sentences imposed in the past may inform a "broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle"'. Consistency does not mean numerical equivalence but the consistent application of relevant legal principles.

R v Chancellor [2019] ACTSC 191

1. In R v Chancellor, a police officer (Mr Chancellor) entered an intersection at speed, against a red light, without activating the car siren and collided with a vehicle within the intersection. He steered his vehicle to try to avoid the crash but was unable to do so.
2. Mossop J found that the offending involved a high degree of negligence. While Mr Chanceller, as a police officer who was responding to a 'Priority 1' dispatch, was lawfully permitted to be driving in excess of the speed limit and to travel through an intersection against a red light, he was nevertheless required to take reasonable care for the safety of other road users. His Honour found that Mr Chancellor had failed to do so by:

(a) entering the intersection at speed when the light was red, when he should have slowed or stopped;

(b) failing to use the car siren as well as its emergency lights; and

(c) failing to observe (or have sufficient regard for) the presence of the other vehicle entering the intersection.

1. His Honour noted, at [54], that the fact that the death of the victim 'was caused by an experienced police officer who had received specialised driver training and was entrusted with providing safety and security to the public' was a matter which was of considerable concern to the public, as well as the victim's family.
2. His Honour determined that the appropriate penalty was a suspended sentence of imprisonment of five months, which was reduced by around 15% for Mr Chancellor's plea of guilty. Mr Chancellor had strong subjective factors, being a person of exceptionally good character who was acting in good faith in the course of his duties and who had suffered extra-curial consequences, namely disciplinary proceedings which resulted in his resignation and an end to his career as a police officer.

R v Hamdan (No 3) [2022] ACTSC 326

1. In R v Hamdan, the offender (Mr Hamdan) was a P-plate driver who was driving late at night. He had too many passengers in the car according to the conditions of his licence. Elkhaim J found that Mr Hamdan had probably exceeded the 50 km/hr speed limit but, even if he had not, he had driven too fast for the wet conditions in which he was driving.
2. Mr Hamdan lost control of the vehicle and crashed into a tree. One of his passengers was killed while another suffered grievous bodily harm. Elkhaim J found that the objective seriousness of the offending was above medium.
3. Mr Hamdan had a strong subjective case. He was only 20 years of age, of good character, had good prospects of rehabilitation, and suffered serious injuries as a result of the collision (a brain injury, reduced vision in his left eye, cognitive dysfunction, and major depression). He was also remorseful.
4. Nevertheless, his Honour determined that a sentence of imprisonment of 20 months, close to the maximum penalty, was appropriate. This was reduced to 18 months for Mr Hamdan's plea of guilty. It was to be served by an Intensive Corrections Order.

The Police v Hutchison (Unreported, Magistrates Court of the Australian Capital Territory, 4 August 2022)

1. In The Police v Hutchison, the defendant (Ms Hutchison) killed a pedestrian at a raised pedestrian crossing. Quite why the collision occurred is not clear from the statement of facts, except that Ms Hutchison must have failed to keep a proper lookout.
2. Although the incident occurred after sunset and daylight was fading, there was a streetlight illuminating the crossing and there were two large pedestrian crossing signs. Despite this, Ms Hutchison said that she did not see the victim.
3. Of some significance, perhaps, were the facts that the verges to the side of the road were dark and there was a lot of glare from oncoming headlights, including reflection from the wet road. This may have impacted Ms Hutchison's capacity to see the victim.
4. It is also possible that speed was a contributing factor. Ms Hutchison was travelling over the speed limit (64 km/hr in a 50 km/hr zone) five seconds before the crossing, and at 32 km/hr at the point of impact.
5. Ms Hutchison was 59 years old and had no criminal history. Magistrate Cook imposed a suspended sentence of imprisonment of 8 ¾ months, which was reduced by 20% for the defendant's plea of guilty.

1. It is important to recognise the significant harm caused to Ms Imran and her family. To borrow from the words of Refshauge J in R v Creighton, no sentence I can impose will resolve the tragedy that Ms Imran's family have experienced. However, the harm they have suffered is something I have considered in determining an appropriate sentence in this case.
2. General deterrence is also important. As Refshauge J observed in R v Creighton, 'the driving of a motor vehicle is such an every day event that it is often forgotten how serious are the consequences of a failure to take due care in that task'. Drivers, particularly drivers of heavy vehicles, must understand the importance of taking care for the safety of other road users and of the serious consequences if they fail to do so (both in terms of the risk of injury or death to other road users and in terms of possible punishment for their conduct).
3. Mr Alfaro must also be made accountable for his actions and his conduct denounced.
4. Given Mr Alfaro's good character, absence of a criminal history and clear remorse for his conduct, specific deterrence is not a significant sentencing consideration. Nor is there any suggestion that Mr Alfaro is in need of rehabilitation.

1. Ultimately, I must ensure that the Defendant is adequately punished in a way that is just and appropriate.
2. The Prosecution submitted that a sentence of imprisonment is appropriate in this case. Mr Alfaro did not argue against that proposition, and I agree with it. In my view, having regard to the objective seriousness of Mr Alfaro's conduct and the purposes of sentencing that must be satisfied, no penalty other than a term of imprisonment would be appropriate.
3. In all the circumstances, the appropriate penalty is a term of imprisonment of 12 months, which is reduced by 25% to 9 months to account for Mr Alfaro's guilty plea.
4. Having regard to the significant remorse expressed by Mr Alfaro, his subjective circumstances, and the absence of any criminal history, I do not consider that the purposes of sentencing I have identified require that Mr Alfaro immediately serve his term of imprisonment by full time custody. However, I do consider that Mr Alfaro should contribute to the community through the performance of community service work during the period that his sentence is suspended.
5. Accordingly, the sentence of imprisonment will be wholly suspended on Mr Alfaro entering into a 24 month Good Behaviour Order which contains a community service condition, requiring Mr Alfaro to complete 140 hours of community service work.

(a) On the charge of negligent driving occasioning death, being charge number CC2025/4238, the Defendant is convicted.

(b) The Defendant is sentenced to a term of imprisonment of 9 months, commencing on 16 September 2025 and concluding on 15 June 2026.

(c) The sentence of imprisonment is to be suspended upon the Defendant entering into a Good Behaviour Order for a period of 24 months. He is required to sign an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for that period with the following additional conditions:

1. The Defendant will be on probation, subject to the supervision of the Director-General of Corrective Services (or delegate) and must obey all reasonable directions of that person during the period of the Good Behaviour Order, or such lesser period as determined to be appropriate by the supervising officer.
2. The Defendant is to report to the Corrective Services Court Duty officer immediately.
3. The Defendant is to perform community service work for a period of 140 hours within 24 months from the date of this order.

I certify that the preceding sixty-two [62] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.