Preston v Regina

Cause of the accident 9In his remarks on sentence, His Honour found that the applicant was: "... completely familiar with this particular intersection, having driven on the road on many prior occasions, it was part of a regular run that he did a number of times every day and consequently he had driven on that road at least hundreds of times before." 10His Honour stated that as the Castlereagh Highway had a speed limit of 100 km per hour, a person in the position of the applicant " could anticipate that someone on that road would be travelling at that speed ". A collision between the applicant's 42 tonne truck and any other vehicle on that road, at that speed, would therefore " potentially be disastrous ". 11His Honour stated that despite this, the applicant decided to take a risk and approach the intersection at a speed that was not sufficiently slow to enable him to stop in the event that he had to give way to approaching traffic on the Castlereagh Highway. His Honour found that at the time the applicant made that decision and thereafter, he was driving his truck dangerously to any person who happened to be in a vehicle on the Castlereagh Highway at that time. 12His Honour was satisfied that this was " not a case of momentary inattention ", noting that a marking to " give way " meant that drivers should proceed through the line only when it is safe to do so. His Honour found that the applicant made a deliberate decision to drive his vehicle through the give way line onto the Castlereagh Highway and in doing so, ignored his obligation to give way at a give way line. His Honour said that the applicant's " method of driving amounted, in effect, to playing chicken with the cars on the road ". His Honour found that the applicant was " well aware that there was only a limited amount of vision of any vehicles that might have been on the highway approaching the intersection ". 13At that point of the intersection, Excelsior Road was on a slight upgrade. His Honour observed that to get a heavily loaded truck moving again on to the Castlereagh Highway from a complete standstill would take quite some time on that gradient. Relevantly, having regard to his remark that " time is an important factor " to those involved in the road transport industry, his Honour found that the applicant was aware that, if in fact he had to stop at that intersection, he " might be stopped there for quite some time ". As his Honour said: "If a truck is stuck at a corner and unable to drive, time is wasted. It places an imperative on the driver not to stop at the intersection." 14His Honour found that the applicant did not stop at the intersection because of this time imperative. He determined that the applicant took the chance, though " a low possibility, but a recognisable possibility ", that someone would be driving their vehicle on the Castlereagh Highway when his truck entered it. His Honour also commented that, given the size of the applicant's vehicle and the speed at which other vehicles on the Castlereagh Highway were likely to be travelling if a collision did occur, death or serious injury was a very likely result. His Honour concluded that the applicant was " aware of that danger and took a calculated risk that it would not eventuate ". To that extent it was a deliberate decision and resulted in the death of the deceased.

Consideration of the guideline judgment in Whyte 15His Honour referred to this Court's guideline judgment R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 . In Whyte , the Court stated: "[204] A frequently recurring case of an offence under s 52A[(1), being the offence of dangerous driving causing death] has 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. [205] ... 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. ... [214] The guideline this Court should give pursuant to s37A of the Crimes (Sentencing Procedure) Act 1999 with respect to the typical case identified above is: 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." 16The Court, at [216]-[217], noted the following aggravating factors of an offence under s 52A: "(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 or aggressive 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." The Court noted that items (iii) to (xi) relate to the moral culpability of an offender: see especially at [228], where 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. That is not the only way of expressing such a conclusion." 17Spigelman CJ concluded, at [229]: "The guideline for [an offence] against s 52A(1) ... 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."

Subjective factors 18His Honour next dealt with the applicant's subjective circumstances, noting that the applicant was not a young man and that he was a very experienced, very competent and safe truck driver, whose " trucks were always maintained to the highest standard ". His Honour stated that, although the applicant had two prior convictions for driving with the prescribed concentration of alcohol, the last of these convictions was 17 years prior to this collision. I would add that the first conviction was more than 30 years previously. His Honour also commented that the applicant had a remarkably clean driving record for someone who had driven many thousands, if not hundreds of thousands, of kilometres each year. In this regard, the evidence was that the applicant had driven some 5 million km in the course of his professional driving career. His Honour also found that the applicant was a person of prior good character. 19His Honour considered that the other subjective factors in Whyte , although present to a limited extent, had no additional relevance. His Honour also noted two factors mentioned in Whyte which were absent in this case, namely, that the applicant did not plead guilty and did not show any remorse, as the applicant was reluctant to acknowledge the fault in his driving. However, his Honour accepted that there was no intention on the part of the applicant to cause the collision. His Honour accepted however, that there was a lot of evidence in support of the conclusion that the applicant genuinely regretted Mrs Meyle's death. 20His Honour also referred to other subjective circumstances of the applicant, including the fact that he was aged 60, married with three adult children and had a supportive family who were very close to him. Trucking was his life and his livelihood. He was a very hard worker and provided very well for his family through his business. His Honour found that, since the applicant had been in custody (from the date of the verdict), he had been suffering from insomnia and had deteriorated both mentally and physically since the collision. A psychologist's report indicated that it was likely that the applicant was depressed, for a variety of reasons, including his incarceration, the loss of his business, the death of the deceased, the difficulty the incident had placed on his wife who was also his business partner, and on their relationship generally. His Honour commented that the applicant was a stoic individual, who had repeatedly refused medication to treat or ameliorate his insomnia and likely depression.

Aggravating factors 21His Honour found that the most important aggravating factor in this case was the " ignoring of warnings ": see Whyte at [216], item (viii). His Honour held that the applicant ignored the formal warnings of the give way line on the road. His Honour also found that the applicant ignored the fact that in driving towards the intersection, his sight of vehicles travelling on the Castlereagh Highway would be lost, such that he could never be absolutely sure whether or not there was a vehicle on the Castlereagh Highway. It was in that context that his Honour found the applicant " deliberately took a risk with the lives of persons driving on that highway ". 22His Honour rejected as hopeless the applicant's case at trial, maintained in the sentence proceedings, that it was not his fault his vision was impaired on Excelsior Road. His Honour held that this was " a hopeless argument and merely highlighted the manner of [the applicant's] negligent driving ". His Honour further noted that the applicant had driven the route hundreds of times before and, in all the circumstances, his moral culpability for the collision was high.

General deterrence 23His Honour was concerned to observe the requirement to impose a sentence that had as a component " general deterrence ". His Honour noted that: "... truck driving is a business, it is a vital business which supplies the community with goods ... However, it is not business at all costs. Trucks drive on public roads. The roads are provided by the community. The roads are not closed for the delivery of goods, for the exclusive use of goods. Trucks share the roads with all sorts of vehicles which usually have one thing in common, and that is the vulnerability of that vehicle if it comes into collision with a heavy truck." 24His Honour said that in a collision between a truck and another vehicle, the physical consequences for the truck driver are often minimal in comparison to the catastrophic consequences for the driver and occupants of the other vehicle. His Honour noted that driving a truck places a very heavy onus on a professional truck driver not only to drive safely, but also to drive in accordance with the road rules. His Honour again emphasised the 'time imperative' that he had found was the reason for the applicant not stopping at the intersection. His Honour said: "When, as I have found here, a truck driver deliberately flouts the law for an imperative such as making up time, it is necessary that a strong message be sent that this type of behaviour is simply intolerable and will, if detected, result in a heavy sentence."

First ground of appeal: " ignoring of warnings " 25In his first ground of appeal, the applicant contended that his Honour erred in his assessment of the aggravating features of the offence, namely, the " ignoring of warnings " and his Honour's finding that the applicant was deliberately endangering other road users. 26The applicant submitted that his Honour impermissibly engaged in double counting in relation to the finding that an aggravating feature of the offence was the " ignoring of warnings ", insofar as that finding related to the applicant not giving way at the white painted give way line on the road. The applicant submitted that the failure to give way was a relevant factor for the Crown to prove that he was driving in a dangerous manner at the time of the collision, and was therefore an inherent element of the offence. The applicant contended that to find that the same matter was also an aggravation when the objective seriousness of the offence was being evaluated constituted impermissible double counting. The applicant submitted that, if such an approach were correct, then almost every example of dangerous driving would be aggravated by a breach of the regulatory provisions governing vehicle drivers. 27In response to this argument, the Crown indicated that its case relied essentially on the danger of not giving way at a T-intersection, as opposed to the ignoring of the painted give way markings on the road. The Crown submitted that dangerousness was established whether there was a road marking or not. Accordingly, there was no double counting, as contended by the applicant. In specific response to the applicant's argument that every offence of dangerous driving would involve the ignoring of specific physical warnings on the roadway prior to the collision, the Crown submitted that the offence of dangerous driving can occur without a driver ignoring a specific road sign or warning at all. The Crown pointed to the existence of T-intersections in regional NSW that do not necessarily have a warning line painted on the road surface, but nonetheless require the driver to understand the need to give way. The Crown submitted that a driver should be aware of the rule to give way at a T-intersection, whether a give way line was there or not, but the blatant ignoring of such a marking was an important factor in the determination of the moral culpability of the applicant. 28In my opinion, having regard to the way in which the Crown framed its case, there was no double counting in his Honour's approach and the Crown submissions on this aspect of the appeal should be accepted. Accordingly, the first aspect of this ground of appeal is rejected.

Finding that the applicant was deliberately endangering other road users 29The applicant submitted that inherent in the findings of the sentencing judge was the proposition that the applicant knew that his actions were very likely to result in his truck being unable to stop in time in the event that there was an approaching vehicle on the Castlereagh Highway. The applicant submitted that there was no evidence to support this finding, and relied on the opinion of his expert witness, Grant Johnson. Mr Johnson was of the opinion that unless the applicant had previously experienced a vehicle emerging from the blind spot, he could not be expected to be aware of the extent of the problem. The applicant contended that this error resulted in his Honour rejecting his case that the accident was due to momentary inattention. 30The Crown submitted that the evidence, taken as a whole, justified the sentencing judge's conclusion 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. The Crown submitted that this finding was not only open to his Honour, but it was also the most likely scenario of what occurred, given the applicant's familiarity with the T-intersection and the speed at which oncoming vehicles would probably be travelling. 31The Crown submitted that it was reasonably open to his Honour to infer that the applicant had undertaken this manoeuvre during many trips to the intersection, whereby instead of stopping the truck and having to again regain momentum, he would continue through the T-intersection, running the risk of a vehicle being on the Castlereagh Highway, close to the intersection. The Crown also submitted that in any event, there was no, or little, evidence of momentary inattention. The applicant did not give evidence at trial. However, his statement to the police was tendered in evidence. In that statement, the applicant said that there were no vehicles coming from the direction of travel of the deceased's vehicle, so he proceeded onto the roadway slowly. The Crown submitted that this version of events did not support a case of momentary inattention. 32The jury's finding that the applicant was guilty of the offence did not exclude a finding that the accident was due to momentary inattention. However, in circumstances where the applicant was aware of the sight problems at the T-intersection, but nonetheless moved through it such that he could not stop when there was an approaching vehicle on the Castlereagh Highway, it was open to his Honour to reject the applicant's submission. There was also the evidence to which I have referred that the applicant cut the corner, which created a further blind spot and thereby exacerbated the sight problems at the corner. It was the applicant's decision to drive through the T-intersection, notwithstanding the presence of the give way line, when he knew the ability to sight vehicles on the Castlereagh Highway was compromised. Accordingly, I would also reject this aspect of ground one of the appeal.

Second ground of appeal: the sentence was manifestly excessive 33The question as to whether the sentence was manifestly excessive must be considered in the context of his Honour's finding that the accident was not due to momentary inattention. 34It will be recalled that the applicant had reduced speed as he approached the T-intersection and travelled over the give way line at a speed below 25 km per hour. This was the applicant's usual practice and, it would seem, of other truck drivers exiting from Excelsior Road. The T-intersection was dangerous because of the absence of clear sight lines on the approach to the give way line. This, in turn, was due, in part at least, to the under-design of the T-intersection. However, the applicant knew that there were blind spots which required a high level of attention and awareness to the possibility of oncoming traffic. The applicant also cut the corner, as earlier stated, which compounded the difficulties with his line of vision. 35On the basis of these objective facts, his Honour made the findings that the applicant's driving was dangerous, his decision to continue through the give way line was deliberate and he ignored his obligation not to drive through the give way line when it was not safe to do so. These matters, which in my opinion were findings clearly open, if not inevitable, on the evidence, were all relevant to his Honour's assessment of the applicant's moral culpability. However, there are other aspects of his Honour's reasoning which were integral to his finding as to the applicant's moral culpability for the accident, but which, in my opinion, were flawed. 36The first was his Honour's finding that the applicant did not stop at the intersection because of a time imperative. I have referred to this above, at [14]. However, it is relevant to set out his Honour's finding: "Trucking is a business and like any other business time is an important factor. If a truck is stuck at a corner and unable to drive, time is wasted. It places an imperative on the driver not to stop at the intersection, and [the applicant] did not stop. I find that he did not stop because of that imperative ." (emphasis added) 37It is likely that his Honour considered that there was evidence to that effect. His Honour had questioned another witness, Wayne Vincent, on this topic, in relation to evidence Mr Vincent gave about an accident he nearly had at the T-intersection. However, it is doubtful whether the questioning supported his Honour's reasoning. The questioning was as follows: "HIS HONOUR Q. So your view was, I assume, that this was a dangerous intersection? A. Yes. Q. Why didn't you stop at the intersection on that occasion? A. I just done what I've always done. It was a give way sign, I slowed down. Q. Isn't the problem there that to stop there means it's difficult to restart? A. It is. What happens, if you stop at that intersection and you go to restart, you could see a car coming from 500 metres up the road, and by the time you get that prime mover over that road, you've still got the trailer hanging over the road. Q. So knowing that it was a dangerous intersection as far as trucking is concerned, for obvious reasons, the reasons you've said, it makes it very difficult to operate. You could be stuck there for quite some time trying to get out, is what you're saying isn't it? A. Yes. Q. And if everybody works on a commercial basis, you have to get your load to where you've got to get it? A. That's correct. Q. So it made it a priority, if possible to go through that intersection without stopping? A. Have I ever gone there without stopping? Q. No, it made it a priority, it's just something that you regularly did? A. That's right. Q. And you regarded it as a necessity to keep running your business? A. That's right. I'm sorry but the biggest problem I had with - it wasn't as much my left hand side of seeing the traffic coming down the road, it was the right hand side with all the grass and the bank that was there at the time. Q. Which meant that you only got a view of the road down to the right when you were in the last sort of 50 to 100 metres closer to the actual intersection itself? A. Yes. Q. Is my understanding right about that? A. Yes, yes. Q. And they've taken that away now? A. They've taken that away now, yes. Q. But didn't that highlight for you and anybody else driving on that road, that you had to be extra cautious? A. Well that's what made me think after what's happened, I come to a stop to have a good look to make sure there is nothing coming." (emphasis added) 38The bolded questions and answers would appear to be the basis for his Honour's reasoning set out at [36] above. However, the two parts of the first bolded question do not sit comfortably together and could easily have been misunderstood by the witness: indeed, it has features of a double question. The answer, " That's right ", could well be an answer to the second part of the question, " it's just something that you regularly did? ". 39The next question, " And you regarded it as a necessity to keep running your business? ", may have been intended by his Honour to refer to the " the priority " of going through the T-intersection without stopping, a question his Honour thought he had asked in the previous question. However, I doubt that the question would have been so understood by the witness. Having regard to the witness' answer, the word " it " seems more likely to have been understood as a general proposition. 40More importantly, however, no such questions were asked of the applicant. Accordingly, there was no evidentiary basis for his Honour's finding that the applicant's conduct in not stopping at the T-intersection was due to this time imperative. The Crown accepted that this was so. As I have indicated, his Honour's finding that the applicant's deliberate conduct was due to a time imperative was a significant part of his assessment of the applicant's moral culpability. It also formed a central feature of his Honour's approach to general deterrence, which in turn was a relevant factor in the severity of the sentence his Honour imposed. 41The second aspect of his Honour's reasoning which is of some concern is his Honour's comment that the applicant's driving amounted " in effect, to playing chicken with the cars on the road ". This finding was not a mere byline in his Honour's reasons. Rather, it was part of the reasoning that led him to his view of the applicant's level of culpability. The phrase " playing chicken " is a colloquial term usually employed to describe a situation where a person deliberately drives a vehicle towards another to see whether the other vehicle will give way. It is a term that usually denotes intentional, reckless, risk-taking behaviour. The Crown accepted that this was the usual meaning of the phrase. However, the applicant did not engage in conduct of that type. Indeed, as his Honour found, " there is no question that [the applicant] did not intend to cause this collision ". If his Honour was using the phrase other than in the sense to which I have referred, then I consider that the language was immoderate, having regard to all the circumstances.

Conclusion on the second ground 42Whilst it is not necessary to find overt error when a ground of manifestly excessive sentence is raised, I am nonetheless of the opinion that the finding in relation to the time imperative and the finding that the applicant was " playing chicken " in the sense to which I have referred, were not open on the evidence. Although I agree with his Honour's finding that the applicant's driving was dangerous, I am not satisfied that the applicant's moral culpability was as high as I perceive his Honour found it to be, having regard to the view I have taken in respect of the two matters that I have discussed above. If those two matters are put aside, when one has regard first to the objective seriousness of the offence as I have described it, together with the applicant's strong subjective circumstances, I consider that the sentence imposed by his Honour was manifestly excessive and some other sentence should have been imposed. 43In determining what sentence ought to be imposed, it should be noted that the applicant does not fit comfortably within the Whyte guidelines. In the first place, the applicant did not plead guilty and accordingly, there is no discounting factor, even at the lower end of the range to take into account. Nor has the applicant shown remorse, as that term is correctly understood. It is apparent from the evidence that the applicant has not fully come to terms with the accident. Although the applicant accepts his part in the accident and is deeply regretful for the deceased's family, his Honour's finding of no remorse was open to him. These two factors might indicate his case is more serious than the one indicated by the Whyte guidelines. 44However, the applicant is not a young person, which is one of the central characteristics of a person to whom the guideline is directed. This consideration leads directly to the applicant's very strong subjective case. The applicant was in his late 50s at the time of the accident and had been driving all his adult life. His driving record over 40 years was excellent, which is an important factor given the number of kilometres the applicant has driven. The applicant has throughout his long working life been a productive member of the community. These factors must be accorded significant weight in the sentencing process. 45In sentencing the applicant, I also consider that the Court should find special circumstances, given that at about age 60, after a blameless life, the applicant has been convicted of an offence which warrants a gaol term. He is having difficulties coping with his imprisonment. It is apparent that the applicant will need assistance to readjust when he is released. One factor relevant to this adjustment is that, as I find below, the applicant will not be able to drive for a period of 6 months after his expected release on parole.

Licence disqualification 46Finally, there is the question of the applicant's licence disqualification. The Road Transport (General) Act 2005, s 188(2)(d)(i) provides, in the case of an offence of the kind of which the applicant was convicted, for an automatic period of disqualification of 3 years. The court may order a larger or shorter period of disqualification, but not shorter than 12 months: s 188(2)(d)(ii). 47His Honour disqualified the applicant from driving for a period of 5 years from the date upon which the applicant was eligible for parole. Given the applicant's excellent driving record over so many years, I see no warrant for that period of disqualification. The question is, therefore, whether there should be a disqualification period of less than the 3 years automatic disqualification period specified in s 188(2)(d)(i). 48One of the purposes of a period of disqualification is to impress upon the offender the seriousness of the offence and the necessity of complying with road rules. Both of those purposes have been brought home to the applicant by his conviction and his imprisonment. I see no other relevant purpose in this case to warrant the applicant not being permitted to drive shortly after his release from prison. 49In the circumstances I would impose a period of disqualification of 2 years from 24 November 2009. 50In 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 18 months and a balance of term of 18 months. The sentence is to date from 24 November 2009. The total sentence will conclude on 23 November 2012. The applicant is to be released on parole upon the expiration of the non-parole period on 23 May 2011.
5. Set aside the period of licence disqualification ordered by his Honour.
6. Order that the applicant be disqualified from driving for a period of 2 years, such period of disqualification to date from 24 November 2009. 51HIDDEN J : I agree with Beazley JA. 52RA HULME J : I agree with Beazley JA.

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: 03 March 2011