R v Balla

District Court of NSW|2021-07-05

Solicitors: Mr N. Angelovski Mr A. Roberts File Number(s): 2020/00181856

SENTENCE

The offender Tommy Balla appears for sentence for an offence of dangerous driving occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900 in that he drove in a manner dangerous to other person or persons. The offence has a maximum penalty of ten years imprisonment. There is no standard non-parole period.
The offence took place on 18 June 2020, Aaron Vidal was the victim. The offender was arrested on 18 June 2020 but has spent no time in custody. He pleaded guilty at the Local Court and was committed for sentence to the District Court at Parramatta on 18 June 2021. He appeared for a sentence hearing at this Court on 4 June 2021.

Defence Tender

On behalf of the offender I received Exhibit 1 entitled "Defence Sentence Bundle" containing: 1. The written submissions on sentence by the offender's counsel, Ms Rose Khalilizadeh, dated 28 May 2021. Attached thereto were JIRS statistics and some sentencing summaries relevant to this offence. I have received a number of decisions of the Court of Criminal Appeal relevant to aspects of the considerations to be undertaken in this sentence. I have also accessed the Public Defender's Sentencing Summaries relevant to sentences imposed for this offending. 2. Subjective material included a report of Dr Nielsen, psychiatrist, dated 21 May 2021, a report from the psychologist, Ms Naomi Rose dated 15 April 2021 and a large number of references from family, friends, work colleagues (21), a letter from his employer, a Traffic Offender Program certificate, a letter from Ms Widdowson of the Positive Lifestyle Program. During the hearing, the offender and his partner Ms Abbie Pound gave evidence and were cross-examined. I found them to be compelling and honest witnesses. 1. The affidavit of Aaron Roberts affirmed on 27 May 2021 annexing various media reports regarding the collision and court appearances.
Exhibit 2 is the New South Wales Road Rules 2014, in particular, 151.1, 313-2 and 146 regulating the manoeuvre described as "lane filtering" by motor bike riders. These were the rules applicable at the time of the offence but have been subsequently amended.
I have read all the tendered material and received further oral submissions from both counsel.
In the intervening period, I have re-read the tendered material and viewed the DVD, exhibit D, in excess of 30 occasions in real time and frame by frame to allow me to identify those facts I accept established leading up to and occurring at the time of the fatal collision and relevant to assessments I am required to undertake in the sentencing exercise. In doing so, I have considered the evidence of the offender regarding what is depicted in the dash cam recording.
I will take into account the maximum penalty as providing guidance in determining an appropriate sentence. I will also take into account my assessment of the objective seriousness of the offending behaviour, the relevant factors identified by the guideline judgments of the New South Wales Court of Criminal Appeal and any particulars relevant to the offender.

FACTS

The facts are set out in the Crown bundle, exhibit A, at tab 4 and supplemented by the contents of exhibit D. The offender in the matter is Tommy Balla born in 1983. At approximately 5.40pm on Thursday 18 June 2020, the offender was the driver of a white Mitsubishi Triton utility motor vehicle. Seated in the front passenger seat in a child restraint seat was the offender's 21 month old son. The offender was driving his motor vehicle southbound along Windsor Road, Rouse Hill. In the area where the collision occurred, Windsor Road consists of five lanes for travel in a generally north direction with two of those lanes dedicated to turning right from Windsor Road into Rouse Hill Drive. There are also five lanes for travel in a general south direction with two of those lanes dedicated to turning right from Windsor Road into Schofields Road. This section of Windsor Road is governed by an 80 kilometre per hour speed limit.
Another vehicle was travelling behind the offender's vehicle along Windsor Road, Rouse Hill, approaching the intersection of Windsor Road and Schofields Road. The footage (exhibit D) captured the offender's vehicle travelling south and approaching the intersection of Windsor Road and Schofields Road, Rouse Hill, which is controlled by traffic lights.
The footage depicts the offender driving his vehicle into lane four being one of the dedicated right-hand turning lanes into Schofields Road. At this time, the right-hand turn traffic signal was turning from amber to red, the traffic signal was red for approximately two seconds before the offender's motor vehicle crossed the solid white painted line on the bitumen entering the intersection and commenced a right-hand turn into Schofields Road which is captured by the dash-cam.
As the offender's vehicle entered the intersection, an off duty police officer, Senior Constable James George, observed the offender's vehicle enter the intersection quickly. The witness could hear from the friction of the tyres from the offender's vehicle as the vehicle turned. The Crown is not suggesting the offender was speeding and a viewing of the dash cam footage that recorded the time taken to undertake the manoeuvre confirms he was not.
At this time, the deceased victim, Aaron Vidal was the rider of a Triumph motor cycle. His motor cycle was positioned on the left-hand side of lane one along Windsor Road travelling in a northerly direction. The deceased entered the intersection under a green traffic light from the left-hand side of lane one being the far lane of the northbound traffic. The motor cycle collided with the side of the offender's vehicle at the point of the front nearside passenger door and rear tray. The offender's vehicle continued turning into Schofields Road and stopped approximately 100 metres from the intersection. The deceased and his motor cycle impacted heavily with the road surface and became stationary within the intersection.
Emergency Services attended the location and provided assistance to the deceased. As a result of the collision the deceased suffered fatal injuries and was pronounced deceased at the location.
A crime scene was established and the scene was examined by New South Wales Police investigators from the Crash Investigation Unit.
The offender was placed under arrest at the collision scene and conveyed to Blacktown Hospital for mandatory blood and urine testing. Upon completion of the testing, the offender was subsequently conveyed to Riverstone Police Station where he was offered the opportunity to participate in an electronically recorded police interview which he accepted.
Mechanical inspection on the offender's motor vehicle revealed there were no mechanical failures or defects which might have been a contributing factor to the collision. There is no evidence of alcohol or drugs being contributing factors to the collision.

ERISP with the Offender

During the interview, the offender told police: 1. The traffic signal was amber as his vehicle entered the intersection. The signal turned red just as his vehicle past the white line. The offender stated "…I just got past the white line it changed red. I could, wasn't sure, do I, I panicked, do I go? Do I stay? I felt it was safer for me to go. I turned the corner. I was probably near the exit of that turn before I felt someone hit behind the passenger seat…". 2. He did not see the motor cycle driving towards his vehicle prior to the collision. 3. He felt that the motorbike had collided with his vehicle at some speed, he stated "…felt like he was, um, filtering through traffic or something at a fast rate". 4. At the time of the collision, he was on a telephone call using the Bluetooth enabled system installed in his vehicle. 5. Investigators played the dash cam footage of the collision to the offender and he was asked for his comment, where he declined to answer any further questions.

The Eye Witnesses

A number of witnesses driving in a northerly direction along Windsor Road observed the motor cycle driven by the deceased in the moments prior to the collision.
Stephen Slater's vehicle was stationary at Windsor Road in a northbound direction (that is the same direction in which the motor cycle was travelling), positioned in the middle lane of the three lanes in total and positioned second behind another vehicle directly in front. He observed the traffic signal for vehicles travelling in a northerly direction turn green and the offender's vehicle was in the centre of the intersection. He observed the deceased's motor cycle appear from the left-hand side of Windsor Road and collide with the offender's vehicle. He observed the deceased's motor cycle appeared on the far left-hand side of the three lanes as it entered the intersection on a green traffic light.
Russell Dobson's vehicle was positioned on Windsor Road in a northbound direction (that is the same direction in which the motor cycle was travelling). In the far left-hand lane at the intersection of Windsor Road and Schofields Road and at the front of the queue, he observed the traffic signal light turn green for vehicles travelling in his direction. He observed the vehicle driven by the offender was still completing its right-hand turn into Schofields Road from the opposite direction.
At this moment, he observed the deceased and his motor cycle pass his vehicle from the left side and proceed through the intersection colliding with the left side of the offender's motor vehicle. He stated the first time he saw the deceased's motor cycle was: "Probably when he was just level with me towards, certainly not from the mirror but out of the corner of my eye, level with me proceeding but quite fast, probably speed limit or under and it was all pretty quick, one second and then he's T-Boned the white Mitsubishi Ute".
The witness stated the motor cycle was travelling at a "fast speed" and when he first noticed the motor cycle at the left-hand side, it was not stationary. He said: "To me like he's had an opportunistic green. From a few cars back, he's given to it and gone through maybe".
Candance Anderson was travelling in the right-hand lane of the two left lanes which turned left into Schofields Road from Windsor Road. That is, the same direction in which the motor cycle was travelling, albeit, in the turning lane. She observed the traffic signal turn green allowing her to enter left onto Schofields Road. Once the traffic signal turned green, she noticed the vehicle driven by the offender driving through the intersection. She formed the view the accused's vehicle was travelling quickly. She observed the deceased's motor cycle enter the intersection when the traffic signal turn green and collide with the vehicle driven by the offender.

Findings

I am satisfied in accordance with the agreed facts and observations of the dash-cam, exhibit D, and the evidence of the sentence hearing that: 1. The offender approached the intersection to turn right. 2. He braked slightly as he approached the intersection. My observation/assessment of that action as depicted on the dash-cam recording when I first viewed it in court was that the offender was reducing his speed by braking slightly before executing the right-hand turn. I formed this view before the offender was cross-examined when the Crown put to him he braked because he saw the red light but then continued to proceed through the red light. The offender gave evidence consistent with my initial assessment. I do not accept he braked momentarily because he saw the red light, than determined to proceed through the intersection. That could not be established beyond reasonable doubt and is not consistent with my assessment. 1. The red light prohibiting the offender turning right activated approximately two seconds before the offender entered the intersection. 2. Whilst the settings of the dash cam may not record the correct time, it does provide a basis for determining the timing and sequence of events leading up to and occurring at the time of the collision. They are: 1. 15.40.58, the relevant traffic light was green. 2. 15.40.00, the light had turned orange. The motor vehicle ahead of the offender had commenced to turn right. 3. 15.41.02, the red traffic light activated. At this stage, the right turning vehicle ahead of the offender's vehicle had commenced crossing in front of the far left northbound lane. 4. 15.41.04, the offender's vehicle had commenced crossing the white line in his lane and commenced to turn right into the intersection against the red light. The front vehicles in the three northbound lanes remained stationary. This is consistent with the offender's evidence in cross-examination. He said the traffic had not moved so he had continued into the turn. 1. 15.41.07, as the offender's vehicle was about to cross in front of the stationary vehicle in the far northbound lane, I observed, consistent with the witness' statements, the victim's motor cycle lights suddenly appear for a split second under-passing the passenger side of the northbound vehicle stationary in the far left lane. The victim's motor cycle appeared to be travelling quickly under passing this vehicle in the limited space between the vehicle and the traffic island. The offender's vehicle proceeded through the right hand lane driving across the front of the far left lane obscuring the stationery vehicle in that lane and the victim's motor cycle light. 1. 15.41.08 the offender's vehicle momentarily shuddered towards a northerly direction as a result of the impact of the victim's motor cycle. Thereafter the offender's vehicle completes the right hand turn and the victim and his motor cycle can be seen lying on the road.
I accept, based on the witness's evidence and my observations of the dash cam, the victim was most likely lane filtering at a speed and manner that was in breach of the road rules (exhibit 2) and dangerous. I am satisfied, consistent with the opinion of one of the witness's and my observations of the dash cam footage, it was the victim's intention to get in front of the stationery vehicle in the north facing far left lane by driving at a speed and a manner potentially dangerous as he may have had to compete with the vehicle at the front of the north bound lane as it accelerated to proceed through the intersection.
Despite his manner of driving the victim was entitled to have a reasonable expectation he could drive his motor cycle into the intersection as a green light was displayed. He was entitled to believe there was to be no vehicle illegally traversing across the north bound lanes executing a right turn.

OBJECTIVE SERIOUSNESS OF THE OFFENCE

Both parties have addressed me in writing and orally in respect of this important exercise in the sentencing process. The guidance provided by the Supreme Court of New South Wales identifying the factors to be considered in this assessment is well settled. Both parties have referred me to the guideline judgment of R v Whyte (2002) 55 NSW LR 252 that identified a number of factors that arise for consideration in a typical case involving this offence. Each case to some extent turns upon its own facts. The circumstances surrounding this offence vary within a broad range of probability. In considering the Whyte factors in the typical case I note: 1. The offender was aged 37 at the time of the offence and could not be considered a young offender; 2. He was a person of good character and he had no criminal convictions. His motor vehicle offences are of a minor nature and the driving occurred when he was considerably younger and the first eleven years of his driving history is properly considered by the Crown; 3. The death occurred to a single person; 4. The person was a stranger; 5. The offender suffered no injury; 6. The offender displayed genuine remorse (I will comment on this later in my judgment); 7. However, he entered a plea of guilty of some considerable utilitarian benefit in that it was entered in the Local Court and this matter as a consequence has proceeded quickly through the criminal justice system.
In relation to those aggravating factors in the guideline judgment that can impact upon the objective seriousness and moral culpability of the offender I note: 1. there was no excess of speed; 2. the offender was not intoxicated or under substance abuse; 3. he was not driving erratically or aggressively; 4. he was not driving competitively or showing off; 5. the length of the journey in which the persons were subjected to danger as a result of his driving was short encompassing some three seconds.
However, I accept Ms Knowles, Crown Prosecutor, submission that this last factor has a reduced impact upon lessening the objective seriousness of the offence. The fact he drove across the stationery traffic in the far northern bound lanes in disobedience of the red light at a major intersection and at peak hour when there was a considerable amount of traffic is a relevant factor in this assessment. The fact it was a very short journey is limited in those circumstances. By progressing into the intersection two seconds after the red light a number of other persons in the vehicles travelling north were placed at risk.
In the three north bound lanes I observed a motor vehicle in each of these lanes with traffic behind them. No evidence has been led identifying the number of persons in each of the three vehicles. I have not been informed if any of the vehicles contained any passengers. I note each of the vehicles were stationery and unlikely to collide with the offender unless they accelerated forward into the intersection.
The evidence before me is silent as to whether the vehicles at the front of the three relevant lanes remained stationery because none had yet responded to the green light permitting them to move forward through the intersection or whether they were avoiding colliding with the offender. I also take into account another person at risk was the offender's infant child who was in the vehicle and on the same side as the collision and any potential oncoming traffic.
The dangerous driving, as Ms Khalilizadeh has pointed out, involves a single element as characterised at [19] of the Agreed Facts. However, the nature of the driving has to be considered in the context of those factors I have highlighted including it occurred at a very busy intersection. A viewing of the dash cam, exhibit 5, underlines how busy the road conditions were at the relevant time.
The Crown's submission in the present case is not one of momentary inattention reflective of a low level of moral culpability but that the offender's driving constituted a deliberate act of turning against a red arrow. Ms Knowles submits whilst two seconds in and of itself may seem like a short period of time in the context of phasing lights, after the red light is illuminated, the significance of two seconds is greatly increased. She submits the offender was presented with three red lights at the intersection and proceeded to move across a distance that accommodated five lanes of traffic and did so in circumstances where he was speaking on the phone which likely distracted him (ie his attention was divided), the road was busy with numerous other motorists present, it was peak hour, motorists could be expected to be present and potentially not visible and where the offender's own 21 month old infant son was in his vehicle and more exposed than he to the oncoming traffic.
The offender told the police in his ERISP he believed, wrongly he now accepts, that the traffic light regulating the right hand turn was amber and it turned red at the commencement of him executing the right hand turn through the intersection. The evidence does not support that belief although I accept it was honestly held. I have had the benefit of seeing and hearing him as he gave evidence and I accept he is an honest witness. The fact he was on a hands free Bluetooth tech assisted phone call, he says, did not distract him from observing the change of traffic lights to red two seconds before he entered the intersection. He informed Dr Nielssen he drove long distances in his employment and was accustomed to receiving and answering phones in this manner. He says it did not distract him.
There is no explanation proffered by him as to why he did not observe and comply with the red light at the time it was activated. He cannot explain his inattentiveness for the two second period when he did not notice the traffic lights had turned red. An issue is whether that period of two seconds is a momentary lapse on his behalf.
The inattentiveness and ultimate collision has occurred over a moment compromising of several seconds and ultimately a split second. Neither the victim nor the offender had the opportunity to see the other. However, crossing in front of the north bound lanes contrary to a red light resulted in a tragic and unnecessary death of the victim.
I am satisfied the offender's dangerous driving in entering the intersection occurred as a result of his inattentiveness in not seeing the red lights prohibiting him from effecting a lawful right hand turn with his vehicle. He did not see the warning by red lights requiring him to stop. He cannot explain how he failed to see the red lights. He rejected the suggestion he was distracted by the hands free call in his evidence consistent with his statement to Dr Nielssen. The fact it was at night and there was present many lights of other vehicles and traffic lights managing the use of a major intersection, the fact that his young son was in the car or the fact a motor vehicle ahead of him had executed a right hand turn have not been suggested by the offender as a possible explanation. He says he was not tired. There is no evidence before me that can answer this significant question. He was inattentive for 2 seconds and cannot explain why.
There is no evidence before me that can establish beyond reasonable doubt he was distracted by some extraneous source. The offender gave evidence when he realised the light was red he was in the turn and believed it was safe to continue, particularly when the north bound traffic had not commenced to move forward. Ms Khalilizadeh submits at that point in time the offender had to make a split decision, "do I go or do I stay", and he found himself in the middle of the intersection and made a tragic decision. She submits there is no other evidence to refute his explanation on oath for entering the intersection and on that basis it should be accepted.
Further she submits whilst there is no clear explanation why he thought the traffic lights were amber it was an honest if unreasonable belief indicating his lack of attention to the lights was momentary. She suggests I would be so satisfied on the balance of probabilities.
The offender is a person of good character and he gave evidence on oath. He impressed me as an honest witness and that impression is supported by the numerous referees who provided testimonials tendered in this hearing. On that basis I propose to accept his explanation and Ms Khalilizadeh's submission. I am satisfied that he did not deliberately or intentionally ignore the red lights warnings.
I also note other factors in the guideline judgement that can aggravate the objective seriousness of these offences and increase an offender's moral culpability such as engaging police pursuit, failing to stop, and sleep deprivation are not present in the circumstances relevant to this offending. The ultimate question is what impact the limited relevant factors have upon assessing the offender's moral culpability in the commission of the offence.

Lane Filtering

In assessing the offender's moral culpability I am required to consider what Ms Khalilizadeh has referred to as the "circumstances of the victim's driving" and whether this impacts upon the moral culpability of the offender. I have received written and oral submissions from both Counsel on this issue. Both have referred to me to a number of decisions of the New South Wales Court of Criminal Appeal where this issue has been considered. In relation to the Road Rules governing Lane Filtering I understand it is accepted those provided by Ms Khalilizadeh (Ex 2) were current at the time of the offence.

The Defence Position

Ms Khalilizadeh submits there is a considerable continuum of criminality captured by the offence that requires a consideration of the entirety of surrounding circumstances relevant to the assessment of the offender's moral culpability. She submits the conduct of the victim in this case is a relevant consideration and a matter properly taken into account in the overall assessment of the seriousness of the offence and the offender's culpability (R v Janceski [2005] NSWCCA 288 [at 29]). By reference to the observations of the witnesses she submits I would take into account the victim's motor cycle was travelling at a "fast speed", "lane filtering at approximately 50-60 kilometres per hour" and passing the stationery vehicles stopped at the red light in front of him and observed on the "far left hand side of the three lanes", that is, besides the kerb of the traffic island and "accelerating because he had the green light and obviously wanted to get in front of the cars".
She submits the victim's approach to the intersection, that is, the unlawful lane filtering contributed to the circumstances of the collision and as a result of the combination of these objective factors the offender's moral culpability is low and an appropriate assessment is based on the entirety of the surrounding circumstances. She submits I would find the victim breached the lane filtering road rules in particular by the speed he was travelling up to at the time of the collision.
She submits the cases involving the behaviour of passengers in motor vehicles I have been referred to as distinguishable from cases where there is a breach of the road rules. She says whilst these rules are also regulatory they create traffic offences with associated penalties. She submits consistent with the decision R v Whelan [2004] NSWCCA 379 the victim's behaviour does not have to be "contumacious". The Cambridge Dictionary, when used in the law field, describes contumacious behaviour as "refusing to obey or respect the law in a way that shows contempt".

The Crown Position

Ms Knowles, Crown Prosecutor, concedes, that for a short period of time the victim may have been placed between the island kerb and the motor vehicle in the far lane and travelling at 50 to 60 kilometres he was exceeding the speed of 30 kilometres per hour permitted for a motor cyclist to lawfully lane filter but she notes that the speed limit was 80 kilometres. She accepts the actions of the deceased likely contributed to his failure to realise the offender had run a red light as the deceased entered the intersection but reminds me the deceased did ultimately enter the intersection under a green light as I have previously noted.
In cross-examination of the offender she suggested to him that as someone who had held a motor cycle driver's licence he should have been aware of the possibility that a motor cyclist could be lane filtering. I do not accept irrespective of his experience he should have had an expectation in undertaking the right hand turn that a motor cyclist could be lane filtering in breach of the road rules.
Further she submits even if I was satisfied the behaviour of the victim may have contributed in some way to the collision that caused his death the fact cannot mitigate the offence (R v Errington [1999] NSWCCA 18) and this is reflective of the strict liability nature of the offence itself and the question of whether the offender's driving is dangerous is an objective one and depends on the degree of risk to the safety of others.
She submits it is also relevant that whatever his actions the deceased was not riding his motorcycle in a way that could be described as a criminal act or "contumacious offending".
I accept whilst any "culpability" of a victim does not mitigate an offence, it can, in certain circumstances, be relevant to the assessment of the offender's culpability. The "culpability" of a victim has the potential to do this in a case where the actions of the victim are "contumacious" or indeed criminal, as discussed in Janceski [2005] NSWCCA 288. The Crown's position is those considerations do not have application in the present matter as there is a distinction between acts of "contributory negligence" by the victim arising from infringement of traffic regulations and acts constituting the type of "contumacious" behaviour contemplated in Janceski. The former cannot be a mitigating factor [R v Errington [1999] NSWCCA 18 at [28]]. The latter can affect the assessment of the culpability of the offender.
In the present matter Ms Knowles submits the circumstances of the victim's driving does not give rise to Janceski type considerations and the guideline of Whyte continues to be of application. In Janceski, I observe, it was accepted both the offender and the deceased were driving dangerously.
I am satisfied the victim in carrying out the "lane filtering" manoeuvre in the manner he did was in breach of road rules designed to allow this to be lawfully undertaken in a manner that was not dangerous. The rules inherently recognise a motor cyclist may be obscured in performing this manoeuvre and for that reason alone it must be undertaken at a speed that will allow time for cyclist and other drivers' sufficient time to react and avoid any collision.
In considering the evidence of the witnesses the victim was performing the manoeuvre at an inappropriate speed that had the object of allowing him to get ahead of the vehicle at the front of the lane and thereby proceed first through the intersection. This manoeuvre was also dangerous in that he was potentially vying with the first placed motor vehicle preparing to proceed forward in the same traffic lane as permitted by the green light.
I am satisfied the collision would not have occurred if the victim was observing the road rules regulating lane filtering and to that extent contributed to the fatal collision.
The behaviour described in Janceski involved a course of driving that breached a significant number of road rules over a considerable period of time. It was a dangerous course of driving and must represent an extreme example of contumacious behaviour. Ms Khalilizadeh has submitted the facts relevant to the course of driving and breach of road rules in Whelan could not be considered as contumacious behaviour but was judged as capable of being taken into account in reducing the moral culpability of that offender. In respect of that submission I take into account Hunt AJA's observations in Janceski [28] that "both cases are extreme examples" referring to the facts in Errington and Whelan.
Assessing the conduct of the victim I take into account the manoeuvre of lane filtering is inherently dangerous and specific road rules were introduced clearly to manage its execution and reduce its dangerousness, particularly by prescribing the undertaking of a speed of no greater than 30 kilometres per hour. I am satisfied it was more serious behaviour as exhibited by the driver in Whelan but substantially less than that exhibited in Janceski.
In addition I take into account the victim by the nature of his occupation would have had a greater appreciation for the reasons underlying the need for these road rules and the inherent dangerous and fatal consequences that can occur in executing this manoeuvre in disobedience of the rules.
If there is a continuum of such behaviour lying between the extremes identified in Whelan and Janceski than I am satisfied in that context the nature of the victim's breach of the road rules should be taken into account in lessening to some limited extent the moral culpability of the offender.
However, I acknowledge irrespective of his behaviour the victim was presented with a green light indicating he could enter the intersection with an expectation he could do so without encountering a vehicle executing an illegal turn. It was the offender who caused the fatal collision by illegally proceeding through the intersection in circumstances dangerous to other road users including the victim.

Totality of Factors

In assessing the moral culpability of the offender and degree to which he abandoned his responsibility I also take into account the following observations by Justices of the NSW CCA that identify this is a nuanced undertaking. In particular I note the following:
In R v Errington (2005) 157 A Crim R 553; [2005] NSWCCA 348 at [27], Mason P commented that: "There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability."
The observations of Hidden J Markham v Regina [2007] NSWCCA 295 at [25] and [25] respectively where his Honour observed: "The expressions "abandonment of responsibility" and "high moral culpability" employed in the guideline judgment in Whyte are useful, but they are necessarily flexible. It was not intended that they become terms of art in this branch of sentencing law". and, It is also important to bear in mind what the Chief Justice said in Whyte at [232]: "The guideline is, to reiterate, a "guide" or a "check". The sentence imposed in a particular case will be determined by the exercise of a broad discretion taking into account all of the factors required to be taken into account by s21A of the Crimes (Sentencing Procedure) Act."
Simpson J made similar observations 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."
In determining this important assessment in offences of this kind I also take into account the judgement of the Bell P in Moodie v R [2020] NSWCCA 160 where his Honour considered what was meant by "momentary inattention or misjudgement" and determined it was indistinguishable from momentary distraction. [37]
His Honour observed at [129] by reference to Justice Simpson's above comments that: "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. 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."
There are no aggravating factors to be taken into account as identified in s 21A (2) Crimes (Sentencing Procedure) Act or in Whyte, but for the number of people put at risk being (ii) in the Whyte list of aggravating factors. It has been generally accepted there is a high degree of moral culpability displayed where there is present to a material degree one or more of the aggravating factors numbered (iii) to (ix) in Whyte. None are present in the commission of this offence which in my assessment is significant.
Both Counsels agree in assessing the offender's moral culpability I also need to consider the totality of the offender's course of driving leading up to the intersection and executing the right hand turn. In doing so I am satisfied: 1. There was no evidence to suggest that the offender's earlier driving that night was dangerous or in breach of the road rules. The preceding limited period of his driving captured on the dash cam is consistent with that assessment. 2. He had an honest but unreasonable belief that the lights were amber and only changed to red as he was about to enter the intersection. 3. The offender for unknown reasons over a period of two seconds failed to see the traffic lights had turned red. There is no evidence I can be satisfied beyond reasonable doubt to suggest a distraction or divided attention that would increase the offender's moral culpability. 4. He did not intentionally or wilfully ignore the red light or its signals. 5. At the time he noticed the traffic lights were red his vehicle had crossed his lane's white stop line. 6. At that time he made a split second decision and proceeded into the intersection. The oncoming traffic was still stationary. 7. Whilst he believed at the time it was the correct decision it was a misjudgement on his behalf that ultimately resulted in travelling through the intersection against red traffic lights and colliding with the motor cycle, killing the victim. 8. He proceeded through a busy intersection against a red light where there were a number of drivers in motor vehicles wishing to proceed north who were potentially placed in danger. 9. The period of dangerousness, that is the period of seconds after the breach of driving against a red light, can be compared to an offender who drives through an intersection against a red light in circumstances where the cross traffic has been proceeding lawfully on the intersecting road for some time. In those circumstances the period of dangerousness could not be considered momentary. In this respect a comparison to other red light cases is not always helpful.
An assessment of these factors does not allow the offender's behaviour to be characterised as momentary inattention/misjudgement but it lies towards the lower limits of the continuum referred to by Simpson J.
In assessing his moral culpability I acknowledge the offence is serious as underlined by the tragic loss of life. In considering the relevant factors I have identified I am not satisfied the offender's conduct in failing to observe the change in traffic lights for 2 seconds was intentional, wilful or reckless. I accept his explanation. I am satisfied in view of the red light being displayed for 2 seconds before he entered the intersection that his inattention could not be displayed as "momentary" but it falls just above that accepted description.
In respect of his decision to enter the intersection I am satisfied it was a misjudgement made by him within a split second. The execution of the illegal turn against red traffic lights was dangerous and the manoeuvre occurred over a period of three seconds. On that basis, and considering the entirety of the surrounding circumstances including acknowledging a number of people potentially put at risk, I assess his moral culpability as towards the lower end by reference to comparative offences considered in the context of the large number of cases I have been referred.

Prior Good Character

I accept the offender is a person of high good character. He is now aged 37 and this factor has to be considered in the context he has a considerable bank of good character to now call upon. This is reflected in his lack of criminal convictions, the large number of testimonials by friends, family and work colleagues that are tendered on his behalf and speak highly of him. Whilst to some extent limited in sentencing for offences of this nature I am satisfied his prior good character entitles him to a degree of leniency not available to those who are not of good character. It also provides guidance in assessing whether he has good prospects of rehabilitation and not reoffending.

Plea of Guilty

His early plea of guilty at the Local Court entitles him to a 25% reduction from an otherwise appropriate sentence pursuant to s 525D(2)(a) Crimes (Sentencing Procedure) Act 1999 to reflect the utilitarian benefit to the community.

Remorse

I accept the offender is sincerely and profoundly remorseful as demonstrated in his evidence, the evidence of his partner and the testimony of those who know him. The Sentencing Assessment Report author at p 2 under the heading "Attitude" and "Insight into Impact of Offending" reports": "Mr Balla appears to acknowledge the seriousness of his actions" and stated that: "it was unintentional, an error in judgment on his behalf", and, "Mr Balla reports he reflects on the events daily and often thinks about the impact of his actions on those involved and reported his error in judgment has caused a fatality in the community which has impacted the life of the victim's family and has had a serious impact upon his mental health."
The psychologist, Ms Naomi Rose, in her report [p 9] noted: "Mr Balla has expressed his remorse for his offending behaviour almost in every session. When he talks about the incident he breaks down and cries. He has said in many sessions that not a day goes by that he does not think about the day on 18 June 2020. He thinks of the officer who lost his life, his family and his newborn. Mr Balla has said as a father that it truly pains him deeply."
She notes: "He says he regrets it 100%. He said he regrets and feels sorry about the offence and takes responsibility for what he did."
She opined in her view he has: "Demonstrated genuine remorse, contrition and accountability for his actions and insight into his offending."
I initially attempted to summarise the contents of his affidavit relevant to this consideration, but it became apparent the depth of his remorse could only be demonstrated by quoting some of its paragraphs.
In para 5 he said: "There is actually no way to interpret in to words the true heartbreak I am feeling. I think about Mr Vidal and his family every moment of every day. I cannot imagine the pain and loss of Mr Vidal to his family and friends, particularly his partner. Mr Vidal's partner recently gave birth to a beautiful baby boy, a baby boy he will never get to meet, because of me. Knowing Mr Vidal will never experience the joy of becoming a father hurts me the most."
In para 6 he said: "I can count daily the months and days since this tragic accident occurred. Every date of significance is even more difficult for me to process mentally and emotionally. During Christmas time and other dates where family is the main element, my thoughts of Mr Vidal and his family are amplified. I feel a sense of guilt when I am spending time with my family, as he should also be here spending time with his. We, as a family, have basically stopped celebrating occasions. I wish there was something I could do to make this better. There is nothing. Nothing at all."
In para 7 he said: "Everything has changed for so many people and I ask myself how can I find the right words to apologise to the Vidal family what I have done. There will never be the right words. I want them to know I am truly sorry for what I have done. I do not ask to expect forgiveness from Mr Vidal's family, friends or colleagues, as I will never forgive myself."
In para 8 he said: "This action has completely broken me. I cannot envisage a time when I will ever recover from the death of Mr Vidal, knowing that I caused an accident and someone has lost their life has been extremely difficult to process one in which I accept full responsibility."
At para 9 he said: "I would like to apologise to the community for my actions, the community expects that people who drive on the roads safely and I know that I failed in what the community expects from drivers on our roads."
At para 24 he said: "Not only am I heartbroken by the loss of Mr Vidal and the effect it has on anyone who ever met him, there is also this dark cloud of guilt following me for what I have exposed other people to. The witnesses and first responders, who may be dealing with their own trauma from the accident are constantly in my thoughts. I also think of the emergency services who have to experience this as part of their jobs. I believe this kind of experience is difficult for the strongest of people, regardless of their occupation. I would somehow like to apologise to all these beautiful people for what I have put them through."
Finally, at para 43 he said: "I have learnt a very cruel life lesson. I know through firsthand experience that things can change rapidly for the worse in a split second. I caused this tragedy. I wish I could relieve the burden others feel for the loss of Mr Vidal. There is nothing that can be done to console or comfort anybody involved in this. It is a haunting reality for me, one that will follow me for the rest of my life, and I am truly sorry to everyone who has been impacted by this tragedy."
I am satisfied he is profoundly remorseful to an extent that is rarely seen in the Court, or by me in a career in law that commenced in 1977, and he has accepted full responsibility for his offending.

Subjective Background

This is primarily set out in the report prepared by Dr Nielsen, but also in the affidavit of the offender, his partner and the many referees' testimonials.
Mr Balla was the youngest of his mother's three children with an older brother. He is a solar energy installer. He has an older sister who manages a restaurant. His father was a painter and his mother did factory work. His parents migrated to Australia from Hungary separately and he speaks some Hungarian. He was born in Adelaide where his parents met and moved to Sydney with the family when aged three and settled in Pendle Hill. He attended Pendle Hill Primary School and Greystanes High where he played soccer and baseball. He completed a mechanical apprenticeship at the Ford dealership and then became a food equipment technician after applying for a job in that area, and then moved to work for a multinational elevator company in the area of escalators and automatic doors. He had one previous long term relationship of 12 years duration to his childhood sweetheart, including two years when they were married. He has had another relationship for nine years with his current partner, who has a son from a previous relationship who he has formally adopted. They have a son together now aged two and a half. His partner works for Housing New South Wales.
Mr Balla enjoyed being with the family, art, and travel. He has travelled to Hungary twice at the age of 17 and in his twenties. He is involved in various sporting activities of his older son, who is a representative basketball player. When asked about his plans for the future he said, "Get married, get out of this financial struggle, may be do the next stage of an electrical trade".
As far as he knew he had achieved his early developmental milestones at the expected times. His co-ordination was good. He did not have any learning or behavioural problems at school and completed his HSC with an average mark. He has a trade certificate and a certificate as a Fitter Mechanic, a restricted electrician's licence and several other qualifications related to his work as an elevator and automatic door technician.
He informed Dr Neilson, "I have a good driving record. I do up to 45,000 kilometres a year. I drove as far as Ulladulla and sometimes cover all of Sydney. I have a couple of speeding tickets, but nothing major." He claimed he is a patient driver, never lost his licence and never had been involved in a serious accident. His record confirms his claims.
The offender and his wife gave evidence about their relationship. The offence has placed a great strain upon the family unit at all levels. Any money they have saved has been spent on legal fees and providing living expenses in view of the offender not being able to work. Despite this, they appear to have a warm, loving and supportive relationship. The numerous referees who have supplied testimonials on his behalf have mentioned aspects of his life personal to their relationship and interaction with him, describe him as a man who is highly regarded, is a hardworking and competent employee, a close and generous friend and a loving father and partner.

Prospects of Rehabilitation and Likelihood of Reoffending

The offender is aged now 38 years of age. He has a partner and two children, 11 and two years of age. He has accommodation. He has substantial support within the community and his and his partner's family. He has always been employed and has skills that will allow him to readily obtain skilled employment. He has always demonstrated from a young age when he worked in a fast food outlet a motivation to work, he is industrious and a highly regarded employee. He is a person of prior good character. There are no issues with illicit drugs, alcohol or gambling. The presence of these factors indicates a positive foundation that should ensure he will not re-offend. In addition, he has been assessed by the Sentencing Assessment Report author as a low risk of reoffending. I agree with that assessment.
He has demonstrated significant remorse and insight into his offending behaviour. He has attended the Traffic Offenders' Program in respect to which I note the supervisor observed: "Tommy has completed the program to an outstanding standard. He has a mature and responsible approach to the TOIP program." He gave evidence he is prepared to attend and tell his story to encourage others to drive safely. A number of the referees have commented his recommendation to them and their children that they should attend and participate in a TOIP program. He has also attended the Salvation Army Lifestyle Programs and Chaplain Shanna Widdowson, a co-ordinator, has advised me she is willing to continue to support him in the future. He is seeking regular psychological counselling with Naomi Rose to address the Post Traumatic Stress Disorder he has experienced since the offence. Psychiatrist, Dr Nielsen [p 7] opined in his last para: "His long term prospect is good based on the nature of the offence itself, his family circumstances, the history of consistent employment, is a well-qualified technician, the absence of any criminogenic risk factors and the natural history of his combination of disorders, which is for eventual recovery."
I am satisfied he has excellent prospects for rehabilitation and I would be surprised if he ever reoffended.

Mental Health

As a consequence of the death of the victim the offender has suffered a significant deleterious impact on his mental health. His affidavit graphically demonstrates he has difficulty dealing with the consequences for the Vidal family, and the victim's partner and son and his family. Dr Nielson [p 2] last paragraph reported: "Mr Balla said that the accident and the subsequent proceedings has a severe impact on his mental health. He said that he had become anxious in many situations and was affected by anxiety symptoms whenever he thought about or was reminded of the accident. He described intrusive distressing memories of the accident and the aftermath including being informed that the motorcycle rider had died. He said that his sleep was interrupted and he had disturbing dreams. He said he was aware of feeling quite depressed and being unable to relax and enjoy otherwise pleasant occasions. He said that he was especially distressed to see members of the deceased family at court appearances, which reminded him of the effect of the accident."
As a consequence, he has been prescribed antidepressant medication.
Dr Neilson diagnosed him of suffering from:
Depressive Illness, and
Post-Traumatic Stress Disorder.
He is seeing the psychologist, Ms Rose, on a regular basis who reports in his words, "The accident consumes me in every sense of the word day and night". He cannot sleep at night as his mind is "constantly focused on this tragedy".
In relation to trying to piece together what happened he says, "Those questions haunt me every day and will haunt me the rest of my life". These excerpts and the statements are consistent with the contents of his affidavit. His appreciation of the consequence to others as a result of his offending I accept has had a significant and detrimental impact upon his health. This has been commented upon by the large number of referees who provided written testimonies upon his behaviour, diagnosed by Dr Nielson as PTSD, and resulted in his partner, who has succinctly observed "I do know Tommy now lives in his own prison everyday".

Hardship in Custody

I am mindful of the observations of Bell P in Moody [144] in relation to the fluid nature of impact of conditions in custody as a consequence of the Covid-19 pandemic. However, as a list Judge at Parramatta District Court I have been in regular consultation with Corrective Services officials during that time and I have also sentenced a large number of remand offenders since its impact. As a consequence I believe I am in a unique position to consider the impact of the appropriate strategies employed by Corrective Services to combat the spreading of the virus in the confined environments of their institutions. I make no criticisms of the strategies enforced, however, I am aware they have resulted in daily long periods of prisoners being locked down in their cells, which is usually reserved as a punishment for those who infringe the prison regulations; limited, if any, rehabilitation programs available that extinguishes or diminishes the capacity to achieve one of the objects of sentencing and that is rehabilitating offenders, and restrictions upon visitations by family and friends that exacerbates any underlying mental health issues.
Sentenced prisoners who were on bail and enter Corrective Services institutions are also required to be placed into isolation for a period of two weeks before they are released into the general prison population.
In light of the current resurgence of the pandemic's impact and past experience any expected future loosening of restrictions are now on hold. Sentencing judges in determining the length of a sentence to be imposed prior to the arrival of the virus would not have had an expectation that prisoners would be subjected to these conditions that are harsher than previously accepted as reasonable.
The sentencing judges in the comparative sentences I have been directed by the parties to consider were not required to incorporate in their synthesised judgments this particular factor. Whilst I cannot predict how long these harsher conditions will prevail I am satisfied I can be sufficiently prescient to confidently assume they will continue to operate for a considerable period of any sentence that would be imposed upon this offender. I am satisfied these conditions will increase the hardship of the offender if a custodial sentence was imprisonment.
It is accepted the harshness of imprisonment is exacerbated for those prisoners who suffer from mental illness or disability. I have been regularly made aware by many of those offenders I have sentenced during the period of the pandemic who suffer from mental health issues and have been on remand in custody awaiting sentence that requests to see a psychologist or psychiatrist have not been fulfilled nor have they often received appropriate medications. This lack of available treatment has increased the hardship they experience whilst incarcerated. I accept the offender's mental health issues and disorder as identified by Dr Nielssen would increase his hardship in custodial institutions. Dr Nielssen opined imprisonment would exacerbate the sentence of his already disabling and depressive illness and he would be unlikely to receive ongoing counselling (page 7). It is a factor I propose to take into account as a mitigating one.

Hardship to Others

His partner Abbie Pound in her letter made an accurate observation that as a consequence of this offence "one life was lost and two families were broken in an instant". The evidence at the hearing demonstrated whilst the Vidal family have suffered from the loss of the victim in ways that are immeasurable and forever lasting the offender's family have also been innocent victims. The adverse publicity and inappropriate attempts by some of the media to engage the eldest son, the mental and emotional collapse of the offender's capacity to function as he used to in the family dynamics have all resulted in significant harm to the offender's family members. The extent is also set out in the affidavit and evidence of the offender and his partner. His son and partner have suffered as a consequence.
The evidence relevant in the assessment of this factor is that if incarcerated his partner will not be able to maintain their current mortgage and/or meet their family's other financial requirements and will result in an extreme financial challenge including the need for the offender's partner and children to move house, their car being repossessed, pressure on the offender's partner, difficulty in their elder son continuing to participate in his already highly achieving basketball activities and distress for his partner and children.
Ms Michelle Pound, Abbie's mother, advises in her letter that neither sets of in-laws could provide financial assistance to Abbie and her children should the offender be incarcerated.
In addition but not unconnected to that basic need would be the withdrawal of the offender's emotional support to his children and partner. The evidence is that his youngest son is demonstrating concerning responses to his father's absence whenever it occurs.
Ms Khalilizadeh submits whilst the hardship to the offender's family may not fall within what could be characterised as exceptional hardship if he were incarcerated it is still a mitigating factor to be taken into account and I will do so in the general mix of subjective factors.

Extra Curial Punishment

Ms Khalilizadeh submits I should take into account the behaviour of the media and the manner in which it has behaved towards the offender and his family in the pursuit of a story. In support of this submission I have the evidence and affidavit of the offender and his partner, and the affidavit of Aaron Roberts, solicitor (27 May 2021) that annexes some of the media reporting.
Whist the media are legitimately entitled to cover the news of important events and public interest some of the methods employed in this case demonstrate appalling behaviour and poor judgment, not to mention causing distress to the recipients. In this respect I note in particular (a) the attempts to conduct the eldest 11 year old son through his Facebook; (b) the two notes left in the offender's mailbox claiming, in my view disingenuously, a desire to give him the opportunity to tell his side of the story. Both notes are so similar that indicate this is some taught "ploy"; (c) the headlines describing the offender as a "Rapper called Tom-E-Gun". The offender claimed he perceived this was an attempt to portray him as a gangster. Whilst I note the thrust of the Crown's cross-examination of the offender and the submissions that rapper and gangster/criminal do not necessarily equate it has been my observations of rapper performers, at least the popular American version, that they portray themselves as "wannabe" or "faux" gangsters. More appropriate and accurate but no doubt less appealing to editors approving this type of headline would have been ones describing the offender as "a hard working elevator mechanic and family man".
It is unfortunate those accused of a crime and their families are subjected to such intrusive and sensationalised reporting. I accept some of the reporting and methods employed by the news media have had a physical effect on the offender and in particular as a result of his concern about the impact upon his family. I will take it into account to a limited extent in relation to those matters I have identified. Otherwise my observations of the reporting brought to my attention falls within appropriate and accurate reporting of what occurred.
However, as depicted in the annexures to Mr Roberts' affidavit the Internet ensures any future enquiry of the offender will provide a response with multiple references to his involvement in the offence and its tragic consequences. Unfortunately, the nature of the internet will ensure that the sum total of his good and pro social life up until his actions that took place over a number of seconds will be forgotten and replaced indefinitely in some cases with the inappropriate slurs designed for an ephemeral headline.
I am satisfied the evidence identifies some of the reporting and methods employed by media representatives complained of in Ms Khalilizadeh's written submissions have caused public humiliation and vilification to the extent that it has had a significant psychological effect on the offender (Duncan v R [2012] NSWCCA 78 Baston JA) and can be taken into account as extra curial punishment.

SENTENCING PRINCIPLES

Before proceeding further, it is important to acknowledge the victim, his life and the impact upon his family. The statements made by members of his family in the public forum of the Court were emotionally moving and demonstrated the enormity of the impact of their loss. Each experiences the loss of the victim in a different way. Each demonstrated how profound the impact will be on their lives forever. The victim was a larger than life character who brought something positive to each of those who spoke of their loss.
The victim impact statements were of such a profound and personal nature in describing the victim, it was easy to envisage what a warm, funny and endearing young man he was and the extent of his loss to family, friends and the community. He was socially minded in that he had served his country in the Armed Forces and later as a member of the Police Force.
He was a product of, from my limited observations, a large, warm-hearted, embracing and closely-knitted family. He was an integral part of it. His loss of life was senseless and unnecessary. Its impact will continue to be felt by each family member and the child who did not get to know him.
The tragedy of what occurred in a matter of seconds demonstrates the fragile hold we have on life. The tragedy and its impact on the victim's family and friends, I acknowledge, on behalf of the community.
As is sometimes the case in these tragedies, there are other innocent victims who are also worthwhile members of the community. The offender's family have been profoundly affected by the events on all aspects of their lives. Part of their suffering is the emotional and psychological impact upon the offender who is having difficulty coming to terms with causing the death of Aaron Vidal and the impact it has had upon his family. Hopefully, all those affected will not be anchored to this for the rest of their lives.
In sentencing offences such as this, I adopt the observations of Bell P in Moodie where his Honour identified the difficulty in sentencing such offenders [109]: "In approaching the sentence of re-sentencing in cases involving death or dangerous driving, has frequently been said………… 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 metered out to an offender. The sentencing discretion must reflect an adequate punishment, recognise the harm done denouncing the conduct of the offender but also reflect the objective seriousness of the offence, the offender's moral culpability, his or her prospects of rehabilitation likelihood or unlikelihood of future offending".
I am satisfied that irrespective of any sentence I impose upon him the offender will remain in his own prison unless and until he can find a way out. I accept there is not a day that goes by where he does not think about what he did and its consequences. He tries to rationalise it and no doubt wishes he could take back that fatal decision. Matters of this kind that involve all those I have acknowledged are truly tragic. There are no winners. No penalty imposed upon the offender will be sufficient in any way to measure the loss to the Vidal family or even appear proportionate to their loss. No penalty will relieve the offender of his post-traumatic stress disorder and self-imposed mental and physical imprisonment.
Hopefully, this process and sentence I impose may, subject to appeal, bring some closure for all those affected by the events.
I am required to sentence the offender by reference to the maximum penalty taking into account an assessment of the objective seriousness of the offending by reference to those factors I have identified as relevant and as identified in the guideline and other referred to judgments in the New South Wales Supreme Court.
Into that melting pot, I am to take into account all those matters I have identified as relevant including those falling under Part 3 of the Crimes (Sentencing Procedure) Act 1999 including his plea of guilty that results in a substantial reduction in sentences directed by statute. Hopefully, that produces a synthesised and appropriate sentence.
The purposes of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. They are varied and the emphasis to be placed on any one will depend upon the facts, assessment of culpability and particulars relevant to the offender.
With the exception of those purposes that are retributive in nature the balance are directed towards achieving the protection of the community either by deterring others, deterring the offender or emphasising his/her rehabilitation.
In respect of offences of this kind, general deterrence is emphasised to dissuade other like-mind offenders from offending. That purpose has some relevance in the sentence to be imposed.
I am not satisfied the offender requires any emphasis upon specific deterrence. This offence, its impact and his progress for the criminal justice system, in my assessment, are sufficient to dissuade him from offending in the future. I am satisfied he needs no personal or specific deterrence emphasised in the sentence imposed.
Rehabilitation still has some purpose in this process. Whilst I am satisfied he will not re-offend, his rehabilitation addressing his PTSD and mental health occurring as a consequence of his coming to terms with the impact of his offending need to be accommodated in any sentence imposed. In that respect, I note he is still receiving treatment from the psychologist, Ms Rose. It is important to him, his family and the community that his ongoing rehabilitation not be interfered with or interrupted.
In non-Covid 19 times, I would have an expectation his psychological needs and rehabilitation programmes would be addressed and available in the Corrective Services institutions. However, as List Judge at Parramatta District Court last year and this during the Covid-19 pandemic, I am aware that appropriate strategies employed by Corrective Services to combat the pandemic have resulted in a diminution or extinction of psychological and psychiatric treatment and rehabilitative programs. This is not a criticism of Corrective Services. They have had to deal with preventing the outbreak of the virus in their confined environments. World news has highlighted the devastating impact of the virus on prison systems where appropriate steps have not been taken by prison authorities.
Evidence has been placed before me on regular basis in many sentencing hearings and during the period concerning the failure of prisoners to receive mental and health treatment despite making numerous requests. The lack of facilities and professionals available in the prisons is a further consequence of the virus. In those circumstances, I am satisfied his rehabilitation is more likely to be achieved in the community, where treatment and programs are more readily available than in custody.
It is recognised that those who suffer from mental health illnesses or illnesses, experience greater hardship in custody. I am satisfied the referred to strategies and their consequences further exacerbate the hardship experienced in custody by those prisoners who suffer from mental health illnesses.
The protection of the community is an important purpose to be addressed in the sentencing exercise. In my assessment, the offender poses no threat to the community. His prior good character and the extensive positive testimonials from pro-social individuals who know him demonstrate there is no need to fashion a sentence to secure the community's protection. That is more properly ensured by encouraging the success of his rehabilitation.
The application of retribution and denunciation need to be considered in the context of these other purposes I identified as desirable and an assessment made as to whether their accommodation in the sentence imposed is averse to achieving the best outcome for the community.
The parties agree the s 5 of the Act, threshold is crossed and only a custodial sentence is appropriate. The often repeated statement in the guideline judgment R v Whyte at 229 that, "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) would not generally be appropriate" has been tempered by subsequent decisions of the CCA and it is now accepted that "the reference to a head sentence of three years, is not prescriptive" (R v Nguyen [2008] NSW CCA 133 [40A])".

Comparative Sentences and Statistics

I have been provided with and also had access to a large number of comparative cases, JIRS statistics and those summaries of appeals as set out in the Public Defender's Sentencing Tables. In addition the Appendix to the judgement in Moodie sets out in summary form a number of sentences imposed for offences of this kind with reference to their particular and important factors. I accept these can provide assistance in determining an appropriate sentence. As Bell P in Moodie [85] observed: "Whilst it is true to say that no two cases and no two offenders are identical or the same decisions which do take into account comparative sentences, proceed on the basis that cases do share common or at least similar features, except that in Whyte [2004], have referred to the concept of "frequently recurring cases".
However I accept there can be identifiable differences that may account for differences in sentences imposed.
Despite the limitations of the JIRT statistics, I note for offences of this kind, omit 65% of offenders received a full-time custodial sentence, 31.7 % were allowed to serve a custodial sentence in the community by way of an Intensive Correction Order and 3.2 % received a Community Corrections Orders.
On an inspection of the Public Defender's Website I note offences contrary to this section where custodial sentences in excess of two years were imposed involved singularly or in combination factors of excessive speed, aggressive driving (Costello [2017] NSWCCCA 32); presence of alcohol or drugs (De Groot [2016] NSWCCA 93), Cvetjovski [2019] NSWCCA 100, and Gardiner [224] NSWCCA 365); lack of sleep/fatigue (Markham [2007] NSWCCA 294, Mina Nashed [2010] NSWCCA 282) and Bessant [2003] NSWCCA 388); lack of remorse Preston [2011] NSWCCA 25); multiple victims (Barnett [2014] NSW CCA 296), Morabito [2007] NSWCCA 126) and Clampitt-Wotton [2002] NSWCCA 383); or had related offences and/or significant driving and/or criminal records.
In addition and further impacting adversely on any reduction in sentence was the late entering of pleas of guilty (Moodie [2020] NSWCCA 160) or verdicts after trial (Gardiner [2004] NSWCCA 365; Clampitt-Wotton [2004] NSWCCA 383; Tinker [2019] NSWDC 427 Barnett [2014] NSW CCA 296; Preston [2011] NSWCCA 25).
Ms Khalilizadeh has referred me to a number of decisions of the Supreme Court of Criminal Appeal and this Court including Tomson [1999] NSWCA; Pisciuneri [2007] NSWCCA 265; Whelan [2012] NSWCCA 147; Townsend [2010] NSWCCA 336; R v Y [2002] NSWCCA 19; Gagliano [2020] NSWDC 359; Raymond [2019] NSWDC 679 (that included sentencing for other offences including leaving the scene); and, Boctor [2020] NSWDC (that involved a late plea resulting in a 15 % reduction in sentence and where the Crown agreed an ICO with a component of home detention was appropriate) that all resulted in non-custodial or sentences of 2 years and less being imposed.
In considering the sentences imposed by judges of this Court, I have been referred to, I note they have not been reviewed by the Supreme Court. However, I also note there does not appear to be any challenge to those sentences by way of a Crown appeal.
In considering the appropriateness of sentences imposed in this Court I refer to the appeal of Barnett included in the appendix attached to the judgements in Moodie and of which I have particular knowledge and which provides some comparison in respect of this matter. Barnett was sentenced by me after conviction by a jury in respect of two deaths to an aggregate sentence of 3 years with a non-parole period of 18 months. I indicated sentences of 2 years imprisonment in respect of each of offences involving the victims.
The basis for his conviction was that he had been inattentive for a considerable period of time as he drove his small family-owned truck up a steep hill on the very busy Hume Highway north of Goulburn. The two victims, a young student on her way to her first day at university whose car had broken down and the tow truck operative were positioned and silhouetted on the very top of the hill, parked partially in an inadequately sized breakdown lane and partially intruding into one of the highway lanes. They were clearly visible from a considerable distance and certainly from the bottom of the hill.
A number of other vehicles' drivers had given evidence that they had previously passed them and taken measures to avoid colliding with the two stationary vehicles. There were reasons advanced as to why the offender may have been distracted and failed to see the two victims and their vehicles until he swerved at the last minute but too late to prevent him killing both. The expert evidence was the offender had between 10.8 and 9 seconds (depending on whether he was travelling at 100 or 120 kph respectively) in which to view the victims but even in allowing for the suggested time of him being distracted, he had between 4 and 5 seconds to react as scientifically assessed.
This was a considerable period in the context of the relevant circumstances. The swerve marks of his vehicle identified he reacted to avoid the victims at .27 seconds prior to impact. He had been inattentive for at least 4 seconds and in those circumstances, a period in excess of momentary inattention.
A view of the scene conducted with the jury identified the large number of vehicles using this busy highway at a comparative time and underlined the significant number of other drivers who were potentially placed at risk as a consequence of the offender's inattentiveness. Despite the Police closing a lane of the highway I had to yell to be heard by the jury above the noise of the constant passing traffic.
There were no other aggravating factors present as identified in Whyte or pursuant to an application of s 21A(2) of the Crime (Sentencing Procedure) Act 1999. The offender was a young man with no convictions who lived in the area. He had no children but local family. He unsuccessfully appealed against a sentence I imposed with the suggested error being, I should have made a finding of "momentary inattentiveness". Importantly in the context of this sentence there was no appeal by the Crown of complaint or observation by the Appeal Court Justices that the indicative sentences of 2 years imprisonment for each victim in these circumstances, was an error, despite the fact that it occurred after a trial.
The period of inattentiveness by this offender was less than Mr Barnett's. In both there are no other aggravating factors present as identified in Whyte or s 21A (2) of the Crimes (Sentencing Procedure) Act 1999. Both were persons of good character, with no prior convictions, and limited driving records with excellent prospects of not reoffending and rehabilitating. This offender by contrast has a wife and young family and pleaded guilty at a very early time. Mr Barnett went to trial.
This underlines comparisons between many cases referred to me by the parties that fall within broad categories but have distinguishing features that can explain the differing sentences imposed. Indicative of this is the observation of Bell P in Moodie [69]: "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 in the present case it was agreed the speed limit was being observed, there was genuine remorse by the Applicant and a strong subjective case."
I agree with the parties that the section 5 threshold has been crossed and no alternative other than a custodial sentence can be imposed. Taking into account those matters under Part 3 of the Act I have identified particular to him including the reduction in sentence he is entitled to by statute as a consequence of his plea of guilty; and my assessment of his culpability and seriousness of the offence I am satisfied a sentence of two years imprisonment is appropriate.
Ms Khalilizadeh submits in those circumstances an alternative to full‑time imprisonment is appropriate in this case and would reflect the objective seriousness of the offending, and fulfil the need to the offender to be punished, particularly where the Court may impose numerous conditions upon the offender, including community service and home detention.
An Intensive Correction Order still involves a substantial punishment (R v Pullen [2018] NSWCCA 264) particularly in circumstances where numerous and onerous conditions can be imposed. An Intensive Correction Order is not inconsistent with an appropriate penalty or disproportionate to the offending in this case.
Harrison J in Pullen in referring to the Attorney General's Second Reading Speech introducing the Crimes (Sentencing Options) Bill 2017, in determining an Intensive Correction Order was appropriate at para [84] - [89] and observed at [89]: "The result of these amendments is that in cases where the offender's prospects of rehabilitation are high and where the risk of reoffending will be better managed in the community, an ICO may be available, even if it may not have been under the old scheme. The new scheme makes community safety the paramount consideration. In some cases, this will be best achieved through incarceration. That will no doubt be the case where a person presents a serious risk to the community. In other cases, however, community protection may be best served by ensuring that an offender avoids gaol. As the Second Reading Speech makes plain, evidence shows that supervision within the community is more effective at facilitating a medium and long term behavioural change, particularly when it is combined with stable employment and treating programs."
General deterrence is appropriately addressed by the imposition of an Intensive Correction Order in circumstances where it is still a sentence of imprisonment, and where a condition such as those including home detention may make such an order appropriately punitive. It is not a lenient sentence or one that is not a deterrent. It is still a custodial sentence, the burden of which is both punitive and onerous.
I have indicated a positive finding that the community's safety is not at risk given the offender's prospects of rehabilitation and the numerous steps taken towards his rehabilitation, his prior good character, his remorse and insight into offending my assessment of the objective seriousness of that offending behaviour. I am satisfied the offender will not offend again and accordingly the community's protection is sufficiently and properly addressed. The offender is not a risk to the community.
I make the following orders in respect of the offender: He is convicted. He is granted bail on the following conditions: He is to attend court as required. He is to attend Community Corrections Blacktown Office within three days from today, or otherwise directed by Community Corrections. He is to comply with all reasonable directions of Community Corrections. I direct a Home Detention Assessment Report be obtained.
I indicate that a pending a positive Home Detention Assessment Report being received my intention is that he be sentenced to a term of imprisonment of two years to be served by way of an Intensive Correction Order, commencing upon the date when the Court reconvenes and in accordance with him being assessed as suitable for a home detention pursuant to the Crimes (Administration of Sentences) Regulation 2014 Regulation 189; save that such detention is not to apply during any hours of work and that he is to perform 400 hours community service work.
I indicate it is my intention when the matter is returned following receipt of the Home Detention Assessment Report that he be disqualified from holding a New South Wales motor vehicle driver's licence for operating motor vehicles on the roads of New South Wales for a period of four years to commence from 18 June 2020 and ending on 17 June 2023.
If he is not suitable for a Home Detention Order he will have to serve a term of imprisonment of two years, and on the next occasion I will set a non‑parole period and consider matters such as special circumstances.

Amendments 30 September 2021 - [37] amendment from "minutes" to "seconds". 01 October 2021 - Coversheet - updated information for Counsel. 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: 01 October 2021

(2002) 55 NSW LR 252

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