R v Chancellor [2019] ACTSC 191

Crimes (Sentencing) Act 2005 (ACT), ss 17, 89

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)

Cantwell v Nozhat [2017] ACTSC 14; 79 MVR 376

Laundon v Menegazzo [2014] ACTSC 232

Lutz v JK [2016] ACTSC 200; 310 FLR 392

R v Hawkins [2019] ACTSC 103

R v Mazza (unreported, District Court of Queensland, Devereux DCJ, 24 November 2016)

R v Mazza [2017] QCA 136; 80 MVR 419

Walters v Cooper [2014] ACTSC 331

Wells v R [2017] NSWCCA 242

1. The offender, Lachlan Chancellor, pleaded guilty to the offence of negligent driving occasioning death (CC2018/8194), contrary to s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The maximum penalty for this offence is 200 penalty units, imprisonment for two years or both.

2. In summary, the offender's conduct involved driving his police vehicle through an intersection contrary to a red light and colliding with a vehicle within that intersection. This led to the death of the driver of the other vehicle who was travelling home after having visited the shops on the way home from work.

3. An Agreed Statement of Facts was tendered. The offender gave some additional oral evidence. The relevant facts are as follows.

4. On Friday 4 May 2018, the offender was on shift performing duties as a Detective Acting Sergeant of police in the Australian Capital Territory (ACT). The offender commenced duty at 4.00pm at the Belconnen Police Station and performed the role of shift supervisor for Belconnen Station General Duty Patrols.

5. The offender was utilising the call sign Belconnen Patrol 30 (BP30) and was driving a marked police Holden Commodore station wagon. The vehicle was fitted with police emergency lights and a siren and was classified by Australian Federal Police (AFP) as a vehicle suitable for pursuit driving and urgent duty driving (UDD).

6. The offender had received training that including training on AFP National Guidelines on pursuits and UDD.

7. At about 7.59pm, the offender was alone in the police vehicle conducting mobile patrols in the area of Kaleen. The offender was dispatched by ACT Policing Operations to attend an 'Offenders on Premises' incident at Thynne Street, Bruce, relating to a suspicious person observed within a construction site. The job incident was dispatched by ACT Policing Operations as a 'Priority 1' incident, which is defined by ACT Policing as relating to 'life threatening or time critical situations'.

8. The offender commenced UDD on Maribyrnong Avenue, Kaleen, travelling in a north‑westerly direction towards Baldwin Drive.

9. The road conditions were dry, traffic was light and the relevant streets had good street lighting. The relevant roads were in good repair with clear road markings and signage.

10. The offender's police vehicle had the emergency warning lights activated, but its siren was not on. The offender made a radio transmission to ACT Policing Operations requesting the spelling of 'Thynne Street' to program into the Global Positioning System (GPS).

11. At around this time, Ms Amanda Beehag (the deceased) was driving her yellow Hyundai Getz. The deceased had left her workplace at the Australian Sports Anti-Doping Authority at Fyshwick at 6.29pm and had shopped at Woolworths Belconnen at around 7.38pm. The deceased was the only occupant of the vehicle. She was travelling in a northerly direction in lane one on Baldwin Drive, Kaleen/Lawson and approaching the intersection with Maribyrnong Avenue and Stockman Avenue.

12. The deceased proceeded through the Maribyrnong Avenue and Stockman Avenue intersection facing a green traffic signal.

13. At the same time, the offender was travelling on Maribyrnong Avenue towards the Baldwin Drive intersection in a posted 60km/h speed zone and was facing a red traffic signal. GPS data from the offender's vehicle established that the vehicle was travelling towards Baldwin Drive at speeds between 120 to 136km/h.

14. As the offender approached the intersection, the police vehicle sirens were not activated.

15. The offender's vehicle and the deceased's vehicle collided in the intersection between 8.00pm and 8.01pm. The offender's vehicle collided with the deceased's vehicle in a T‑bone type of collision where the front centre of the offender's vehicle collided with the driver's door of the deceased's vehicle. Following the impact, both vehicles came to a rest after striking the central traffic light poll on Stockman Avenue, Lawson. It is not clear why, if travelling to Bruce, the offender was passing through the intersection into Stockman Avenue rather than turning left onto Baldwin Drive.

16. Crash Data Retrieval (CDR) imaging determined that between five and three seconds before the accident the offender's vehicle was travelling between 100 and 113km/h and the brakes were not on. The brakes were applied one and a half seconds prior to impact. Half a second prior to impact the speed of the offender's vehicle was 56km/h. Post-collision analysis determined that the impact speed of the offender's vehicle into the deceased's vehicle was approximately 52km/h. The offender steered his vehicle so as to try to avoid the crash but did not succeed.

17. Momentum analysis established that the deceased's vehicle was travelling at approximately 42km/h at the time of the collision. This indicated that the deceased had travelled through the intersection in accordance with the green light and had not stopped at the intersection.

18. Although there was evidence that the offender was engaged with locating an address using a GPS device prior to the collision, and this might explain why he did not turn left into Baldwin Drive, it is not possible to find beyond reasonable doubt that this was a factor which contributed to the accident.

19. The offender reported the collision to ACT Policing Operations via radio communications and then went to the deceased's vehicle. The offender extracted the deceased from the front passenger door of her vehicle and identified her as breathing but non-responsive. The offender commenced providing first aid to the deceased.

20. Several members of the public stopped to assist the offender at the collision scene and a short time later ACT Ambulance Service, ACT Fire Brigade and other ACT Policing resources attended the scene. First aid was continued with the deceased and she was then transported to the Canberra Hospital.

21. The offender indicated to ACT Policing Operations and to a bystander that having regard to the position of the deceased she had not been wearing a seatbelt at the time of impact. There is no conclusive evidence that the deceased was not wearing a seatbelt. However, there was evidence that it would have made little or no difference to the consequences of the accident. The parties agree that the collision was the substantial and operative cause of the death of the deceased.

22. The offender was clearly shaken by the accident and its consequences. He did all he could to assist the deceased prior to the ambulance arriving.

23. Treatment of the deceased continued as she was transported to the Canberra Hospital. The primary survey of the deceased at the scene determined that she was non‑responsive but breathing.

24. The deceased was admitted to the hospital with life threatening injuries and was placed on life support and ventilation.

25. The deceased did not regain consciousness at any time following the collision and sustained injuries which included a diffuse axonal brain injury involving shearing to the nerves at the base of the brain; a fracture in the spinal C6 vertebrae; fractured ribs and a collapse of both lungs.

26. On 1 June 2018, four weeks after the accident, life support was removed from the deceased. She died at about 12.57pm that day. A post-mortem was conducted and the interim cause of death was listed as "multiple injuries".

27. The deceased had no alcohol or drugs in her system. The condition of her car did not contribute to the collision.

28. A mechanical inspection was undertaken of the police vehicle, with findings including:

(a) The vehicle had been harshly driven during the service life of the vehicle.

(b) Three of the vehicle's tyres were devoid of tread on the inner and outside shoulders and had reached the end of their service life. They required immediate replacement.

(c) The front brakes were in poor condition and required immediate servicing, including overhauling the front brake calipers, replacement of the front brake pads, replacement of disc rotors and brake fluid flush and replacement.

29. However, the mechanical inspection concluded that the general mechanical condition was fair and that there was nothing to indicate any mechanical failure that would have contributed to the collision. Further, the testing undertaken determined that the braking was effective.

30. The offender had no alcohol or other drugs in his system.

31. A victim impact statement was prepared by the brother of the deceased, which he read to the court. It refers to the period that the deceased spent in hospital in an induced coma until, following medical advice that there was no real chance of her regaining any quality of life, her brother turned off her life support. She lived for six and a half hours before dying. The statement reflects the despair, anguish and sorrow of the family of the deceased at losing her. It reflects a hope that her death will not be in vain and that "more informed persons than myself find solutions and enforce improved measures so that others do not find themselves in such tragic circumstances". It recognises that whatever sentence is given to the offender, it will not vindicate the loss of his sister or provide any support or assistance to others who find themselves in a similar position. With considerable grace and dignity, the statement referred to the fact that the offender was acting in good faith and that Mr Beehag and his family hold no ill feelings towards him.

32. Necessarily a contravention of s 6(1) of the Road Transport (Safety and Traffic Management) Act involves the death of a person. As pointed out in Lutz v JK [2016] ACTSC 200; 310 FLR 392, there are no degrees of death and hence this distinguishes this offence from the offence of negligent driving causing grievous bodily harm, where the seriousness of the offence will be influenced by the nature of the grievous bodily harm.

33. In this case the offending involved a high degree of negligence. While travelling in excess of the speed limit and crossing an intersection contrary to a red light was permitted under the road rules, the offender was nevertheless required to take reasonable care for the safety of other road users. That is emphasised by the AFP National Guideline on urgent duty driving and pursuits (ACT Policing). That document, which forms part of the AFP's professional standards framework, is a matter which the offender and other AFP officers were ordered to comply with. Relevantly, it provides (at [2.6]):

Police officers involved in Urgent Duty Driving must use warning devices unless it is reasonable not to do so, in accordance with s 69 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT). Police officers must give the best practicable warning (lights and/or sirens) when conducting Urgent Duty Driving.

When approaching an intersection, police officers must slow their vehicle and only enter the intersection when it is safe to do so. Where an intersection is controlled by a traffic control device, including traffic lights or stop and give way signs, the driver must consider whether it is necessary to bring the police vehicle to a complete stop in order to safely enter, cross and exit the intersection. The police officer must provide other road users the opportunity to give way to the police vehicle in an emergency situation.

34. These requirements give practical guidance as to the content of the duty of care of police officers conducting UDD. The existence of these guidelines reduces the scope for contention as to the content of the duty of care, because a reasonable police officer conducting UDD will comply with the national guidelines. One way in which they are significant is that they exist within a framework which must recognise the pressures under which police work and the relentless nature of police duties. There were no extraordinary circumstances which would lead to it being reasonable for the offender to have departed from those guidelines. The offender's conduct involved:

(a) Entering the intersection at speed when the light was red when he should have slowed or stopped in order to safely pass through it. Entering at speed reduced both the capacity of other road users in the intersection to avoid the offender's vehicle and his capacity to avoid any road users in the intersection.

(b) Failing to use the siren as well as emergency lights. This reduced the likelihood that his approach would be detected by other vehicles entering the intersection. There was no identifiable reason why both measures could not be used.

(c) Failing to observe the presence of the other vehicle entering the intersection, or alternatively choosing to enter the intersection knowing the other vehicle was present when there was a significant risk of a collision.

35. In my view the offending was at the high end of objective seriousness for this offence. That is largely because of the obviousness of the risks created by proceeding at high speed through an intersection contrary to a red light and the extent of departure by the offender from the standard of reasonable care.

36. I do not accept the submission made by counsel for the offender that the condition of the police vehicle in which he was driving is relevant to the assessment of objective seriousness. The agreed facts indicate that there was nothing to indicate any mechanical failure that would have contributed to the collision. There is nothing in the agreed facts indicating that the worn state of the vehicle's tyres contributed to the collision. It is not possible on the basis of the oral evidence given by the offender, or the other material that is before me, to conclude on the balance of probabilities that the state of the tyres was causally relevant to the occurrence of the collision. Fundamentally, the risk of a collision was created by the decision of the offender to enter the intersection contrary to the red light at speed. The attempt by counsel for the offender to raise issues relating to the condition of the vehicle appeared to me to be inconsistent with, and had a tendency to undermine, his client's acceptance of responsibility for the collision.

37. The offender is 38 years old. He is currently unemployed. He is divorced. He has two children. He grew up in Papua New Guinea. He has a brother and sister. His parents divorced when he was 14 years old. He then lived with his father on the Gold Coast. He completed Year 12 and then attended university. Following that he spent two years in the United States. He returned to Australia in 2005 and joined the AFP in 2006.

38. Between August 2006 and March 2019 he was a member of the Australian Federal Police. He qualified to undertake UDD in 2006. He was initially placed in general duties. He was there for 18 months and regularly conducted UDD. He then moved to criminal investigations and remained there until 2014. In 2014 he moved to Melbourne where he was involved in investigation of serious and organised crime. He was sent to Ukraine on two occasions to recover bodies of victims of the MH17 airline incident and to take part in the investigation of the circumstances in which it occurred.

39. He spent three years in Papua New Guinea as part of the Australian government's capacity building efforts. He was involved in developing police stations as well as capacity building efforts in relation to the conduct of investigations.

40. In 2017 he returned to Melbourne and spent six or seven months involved in counterterrorism investigation. In the second half of 2017 he took up an opportunity to return on a short-term basis to help fill gaps in the ranks of ACT police. He was initially a Detective Senior Constable on general duties and then was appointed an Acting Sergeant. When he returned to ACT policing he underwent a two week induction which included a session on traffic matters including UDD. Between October 2017 and the date of the accident, he was required to do such driving almost daily. In his evidence he referred to the staff shortages that he experienced and the increased need for him, as Acting Sergeant, to be on the road personally responding to incidents.

41. After the accident he was told that he was going to be promoted to the position of Sergeant. He was then told that he was going to be suspended as a result of his conduct on the evening of the accident. As the trial approached he made the decision to resign from the AFP. His understanding is that the disciplinary matters raised against him mean he is unlikely to ever be re-engaged by the AFP.

42. 10 references were tendered from current or former AFP officers. Also tendered were references from his mother, father, sister, brother and aunt. The references indicate that the offender is a person of exceptionally good character and that his loss of career is not only a loss to him, but a loss to the community more generally. He is described in the references as: "A highly capable member and very effective contributor in the investigation of organised crime"; "a terrific young man. Affable, civil and of a very pleasant disposition"; a person who "would have gone on to have an outstanding federal policing career"; "a decent, compassionate, hard-working and trustworthy person"; "a genuine, caring person, truly struggling with what has occurred"; "a thorough, considered and fair investigator"; "very upset and remorseful for what has occurred and has accepted responsibility for his involvement in this event"; "a kind, diligent, hard-working and trustworthy person ... always kind and respectful to both the victims and the accused"; "a role model to junior staff"; "an enthusiastic operative with an excellent work ethic and real determination to get the job done"; "well respected and widely regarded as a diligent and capable investigator".

43. The content of these references was not challenged by the Crown and I accept that the offender is a person of exceptionally good character with an impressive history of service to the community over the twelve and a half years that he spent in the AFP.

44. No pre-sentence report was prepared. This meant that there was no assessment of suitability for community service. In the absence of such an assessment a community service order is not an available sentencing option: Crimes (Sentencing) Act 2005 (ACT) s 89.

46. Between May 2014 and May 2017 he was the subject of seven traffic infringement notices, five involving exceeding the speed limit by less than 10km/h and two involving exceeding the speed limit by between 10 and 15km/h. He admitted in his evidence that he had committed these infringements. He accepted that, particularly as a police officer, he should not have incurred them. Having said that they are minor infringements. While they are driving-related matters I do not consider them of any significant weight in relation to the sentencing exercise for the present offence.

47. The plea of guilty was entered on the first day of the hearing. The offender had faced a charge of culpable driving causing death as well as negligent driving causing death. The Crown accepted the plea in full satisfaction of the indictment.

48. The plea of guilty had considerable utilitarian value. I accept that it reflects the acceptance of responsibility and remorse for the offending conduct. Contrary to the submission of the Crown, I do not place any weight on the fact that what I considered to be a heartfelt apology by the offender to the family of the deceased that was given when he entered the witness box had not been given at any earlier time.

49. The offender has not spent any time in custody in relation to the offence.

50. The Crown identified five ACT cases relating to either negligent driving causing grievous bodily harm or negligent driving causing death. The cases were: Walters v Cooper [2014] ACTSC 331; Laundon v Menegazzo [2014] ACTSC 232; Lutz v JK [2016] ACTSC 200; 310 FLR 392; Cantwell v Nozhat [2017] ACTSC 14; 79 MVR 376; R v Hawkins [2019] ACTSC 103. The differing statutory provisions and the circumstances of those cases mean that they are not of great assistance in determining the appropriate sentence. Significantly, the sentence for negligent driving causing grievous bodily harm is only 12 months and the nature of grievous bodily harm may vary significantly from case to case.

51. I was also referred to the unreported decision of Devereux DCJ of the District Court of Queensland in R v Mazza, 24 November 2016 (appeal against conviction dismissed in R v Mazza [2017] QCA 136; 80 MVR 419). This was a case in which a police officer had, while performing a U-turn in the course of his duties, turned across the path of a motorcyclist causing death and grievous bodily harm. The offence was dangerously operating a motor vehicle which carried a maximum penalty of 10 years' imprisonment. A suspended sentence of imprisonment for two years was imposed.

52. I was also referred to the decision in Wells v R [2017] NSWCCA 242. That involved a volunteer rural firefighter who performed a U-turn in his tanker with emergency lights on, causing a collision with another vehicle which in turn caused a further collision with that vehicle which resulted in death. The maximum penalty was 18 months' imprisonment. The offender was sentenced to 12 months' imprisonment served by way of an intensive correction order.

53. Whilst I have had regard to all of these cases they do not disclose any coherent pattern of sentencing of significance for the present exercise.

54. This is a case which may properly be described as a tragedy for all concerned. While road accidents are a regrettable part of modern life, often involving the death of innocent people, it is particularly awful that an innocent driver is killed by the completely avoidable negligence of a police officer. That the death was caused by an experienced police officer who had received specialised driver training and was entrusted with providing safety and security to the public is clearly a matter of particular hurt to the deceased's family. It is also a matter of considerable concern to the public. No one expects to be killed or for their loved ones to be killed on their way home from the shops by a police officer who is negligently driving through a red light.

55. The momentary negligence of the police officer, who is otherwise a person of exceptionally good character and who was acting in good faith in the course of his duties, has led not only to the loss of innocent life but also the loss of his own career.

56. I have taken into account the obviously dramatic impact upon the victim and her family. Despair, anguish and sorrow are the consequences of her death. At the sentencing hearing counsel were unable to tell me whether or not there has been or will be an inquest into the deceased's death. An inquest into the death of the victim would be a forum in which any systemic issues necessary to be addressed in order to avoid accidents like this in the future could be addressed. The task of a sentencing judge is a more limited one.

57. So far as the purposes of sentencing are concerned it is particularly significant to recognise the harm done to the victim of the crime and the community, to denounce the conduct of the offender and make him accountable for his actions. While specific deterrence is not a matter of significance in this case, general deterrence must be a significant consideration. That is because it must be clear to those who have dispensations from the road rules that if they fail to take reasonable care, then they will bear significant consequences if those failures cause death to other people on the road.

58. Having regard to the good character of the offender, there is an obvious tension between his subjective circumstances and the various purposes of sentencing. I do not accept the submission made on behalf of the offender that the matter could properly be dealt with under s 17 of the Crimes (Sentencing) Act. I have had regard to each of the matters referred to in s 17(3) and I am not satisfied that it would be inappropriate to impose any punishment other than nominal punishment on the offender. That is largely because of my assessment of the seriousness of the offence and the absence of significant extenuating circumstances. Further, I do not accept the submission made on behalf of the offender that the matter could be dealt with by way of a good behaviour order having regard to the extra-curial losses suffered by the offender, namely the loss of his job and career. While I recognise that the offender has suffered a significant loss as a result of the disciplinary proceedings brought against him within the AFP and his decision to resign from that organisation, I am not satisfied that the purposes of sentencing will adequately be reflected if the matter is dealt with in that way. In particular, such a disposition would not be sufficient for the purposes of denunciation of the conduct and general deterrence. I have reached the same conclusion in relation to a good behaviour order accompanied by community service. Recognising that it is likely that the impediment in s 89 of the Crimes (Sentencing) Act might be able to be overcome, I nevertheless consider that this would not adequately reflect the purposes of sentencing. Rather, I consider that this is a case in which, notwithstanding the subjective circumstances of the offender, and having considered the possible alternatives, no penalty other than a sentence of imprisonment is appropriate.

59. In my view, having regard to the maximum penalty and the objective and subjective circumstances of this case, the appropriate starting point is a sentence of imprisonment of five months. That will be reduced by approximately 15% on account of the plea of guilty which gives a sentence of four months and seven days. I also consider that it is appropriate to order that the sentence be wholly suspended. That is because in my view the purposes of sentencing will be satisfied by a sentence which, subject to good behaviour, does not involve the offender spending time in full-time custody. I do not consider that an intensive correction order would serve any useful function.

1. The offender is convicted of negligent driving causing death (CC2018/8194) and sentenced to imprisonment for a period of four months and seven days.

2. The sentence is wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.