R v ELPHICK

Facts

1. The facts are before the Court by way of a set of Agreed Facts. I find the following established beyond reasonable doubt for the purpose of proceeding to sentence.
2. The matter arises out of an impact between two motor vehicles at the intersection of the Hume Freeway and the old Hume Highway at Tumblong some few kilometres south of Gundagai at about 1.20 pm on Saturday 24 August 2019. The offender was driving a silver Toyota Hilux utility registered BND-70Y on the old Hume Highway. Paul and Gail Sinclair were travelling in a westerly direction on the freeway in a white Nissan four wheel drive vehicle which was towing a camper trailer. Paul Sinclair was driving and travelling at about 105 km/h in a 110 km/h zone. The Hume Freeway is a dual carriageway with two lanes in either direction. The old Hume Highway has one lane of traffic for each direction. At the same time Nicola Livingstone was a passenger travelling in a vehicle going in the opposite direction to Paul and Gail Sinclair. Nicola Livingstone observed the offender cross the freeway in front of the vehicle in which she was travelling and stop at the centre of the median strip.
3. The Old Hume Highway is predominantly used by local light traffic. Vehicles travelling on the old Hume Highway are required to give way to vehicles travelling on the Hume Freeway. There are two "Give Way" signs facing drivers on the Old Hume Highway before crossing the eastbound lanes of the freeway. There are two further "Give Way" signs within the median strip before crossing the westbound lanes.
4. The offender entered the intersection of the Hume Freeway crossing the eastbound lanes crossing in front of the vehicle occupied by Nicola Livingstone. The intersection with the west bound lane is angled slightly towards the westbound lanes providing an unimpeded view for approximately one kilometre in the direction of oncoming traffic. The facts recite that there was visibility for about a kilometre in each direction. Visibility is therefore excellent, which is demonstrated by two photographs tendered by the Crown at the sentence hearing.
5. Nicola Livingstone observed that the offender's vehicle either did not stop or if it did stop it was for less than one second. The offender proceeded forward across a designated turning lane and then lane two of the westbound lanes, a distance of 7.2 metres. The vehicle being driven by the offender impacted with the driver's side of the vehicle being driven by Paul Sinclair. As a result of the impact the vehicle being driven by Paul Sinclair rolled on to its roof. Paul Sinclair died at the scene as a result of injuries sustained. The agreed facts state somewhat blandly that, "Gail Sinclair suffered a fractured left collar bone that required surgical intervention".
6. However, at the sentence hearing the Crown Prosecutor read a comprehensive Victim Impact Statement prepared by Ms Sinclair. Attached to that Statement are a number of medical and psychological reports. The Crown does not submit that Ms Sinclair has suffered "substantial emotional harm" such as would enliven s 21A(2)(g) of the Crimes (Sentencing Procedure) Act, 1999. However, the reports indicate that Ms Sinclair continues to suffer sequelae as a result of the impact on 24 August 2019.
7. An undated report prepared by Ms Robyne Slade, Psychologist, for the purposes of the sentence hearing sets out that Ms Sinclair suffers from Post-Traumatic Stress Disorder. In addition Ms Sinclair has consulted Mr John McMahon, Neurosurgeon on a number of occasions. In a report dated 29 August 2020 that practitioner opined: "I feel that Mrs Sinclair's presentation is a combination of whiplash or musculoskeletal pain syndrome as well as nerve root compression which could explain a component of her symptoms. Her ulnar hand and finer paraesthesias on the right side could represent an ulnar neuropathy at the right elbow".
8. The offender was breath tested and returned a negative reading.
9. The offender attended the Gundagai Police Station at 9.40am on 25 August 2019 and was arrested and charged. He participated in a record of interview with police during which he told police that he had been driving on that particular road for a number of years and was familiar with the road signs regulating the intersection. The offender told police that his view of oncoming traffic was not obstructed and there was no issue with glare from the sun.
10. The offender gave evidence at the sentence hearing. I will deal with other aspects of the offender's evidence later in these remarks. The offender gave evidence that he was familiar with the intersections and had regularly traversed or negotiated that intersection. He also gave evidence that his view of the roadway was impeded by the "A" pillar of his vehicle.

Assessment

1. For the benefit of any person in court interested in this matter all offences have their place on a scale of seriousness, however described, relative to other matters of that sort that come before the Court. What I am about to say about the seriousness of the matters is in that context, that is, matters of dangerous driving occasioning death or grievous bodily harm in the non-aggravated form of the offence.
2. Section 52A of the Crimes Act contemplates death or grievous bodily harm to a single person. Where there are multiple offences it is appropriate that there be some partial accumulation of sentence. The expression grievous bodily harm contemplates a wide range of injuries including quadriplegia and permanent brain damage. The matter involving the occasioning of grievous bodily harm to Gail Sinclair must also be seen in the context of what is contemplated by grievous bodily harm. In the matters under consideration the findings as to the driving apply to both charges but the findings as to the seriousness may differ because of the issue of grievous bodily harm and what is contemplated by that expression.
3. The parties substantially differ in their submissions as to the seriousness of this matter. Ms Kluss on behalf of the offender submits that the matter is one of momentary inattention. The Crown submits that the matter is more serious than momentary inattention and involves a significant failure to responsibly manage a vehicle, in particular in pulling out on to a dual carriageway speed limited to 110 km/h in circumstances of not ensuring that there were no oncoming vehicles.
4. The facts indicate that the offender was well familiar with the roadway where the incident occurred. The facts also recite that there was visibility for about a kilometre in each direction. Visibility was therefore excellent.
5. On the issue of the seriousness of the matter the Crown drew the court's attention to the decision of Thai v R [2009] NSWCCA 314. In additional comments at [4] McClellan CJ at CL said: "When considering the moral culpability of an offender a finding of momentary inattention is plainly of significance. However, it may not and generally will not be an adequate description of the circumstances relevant to the offence. Momentary inattention when driving at low speed or on an isolated country road may involve culpability of a significantly lower order than momentary inattention when driving on a freeway or in an urban environment where the traffic is dense with intersections controlled by traffic signals".
6. Simpson J (as her Honour then was) gave the leading judgment with Hidden J agreeing with Simpson J with some brief additional comments. The judgments of Simpson J and Hidden J do not impact on the additional comments of the Chief Judge at Common Law set out above. The significance of what I have extracted from Thai v R is that the offender was crossing the Hume Freeway. I am firmly of the opinion that the matter presently under consideration is not one of momentary inattention despite the comprehensive and thorough submissions by counsel for the offender.
7. In assessing the seriousness of this matter the roadway where the incident occurred is significant. This I understood to be the point the Crown was seeking to make in handing up the judgment in Thai. The roadway in question is at the intersection of one of the busiest roadways in Australia with a secondary road. There is a clear duty on drivers joining or traversing such a busy road to properly ensure that it is safe to do so and in particular to ensure that there is no oncoming traffic. The freeway of dual carriageway is speed limited to 110 km/h. The deceased was travelling well within the speed limit. Ms Livingstone observed the offender's vehicle either did not stop or if it did the stop was for less than a second. This would have been entirely insufficient to ensure that there was no oncoming traffic given the speed of traffic travelling on the freeway, particularly if his view of oncoming traffic was impeded by the A pillar. The offender failed in the clear duty he had to ensure that it was safe to join or cross the freeway.
8. As the Crown correctly submitted at the sentence hearing, a number of the factors set out by the Spigelman CJ in R v Whyte (2002) 134 A Crim R 53 at [204] are present in this case including a (relatively) young offender, of good character, death to one person and grievous bodily harm to another, both victims strangers with limited injury to the offender. None of the aggravating features set out at [216] in Whyte are present in the matter presently under consideration. There were others put at risk, namely those travelling on the freeway in the near vicinity at the time.
9. There was some evidence at the sentence hearing about the intersection at which the impact occurred. Exhibit 17 is a cutting from the Gundagai Independent the local newspaper at Gundagai of 17 August 2020. The article includes that a recommendation has been made for "stop" signs to the erected at the intersection where the impact occurred and goes on to say, "This crossing was the site of a fatal crash and other close calls…"
10. On this last aspect one author from the volume of references, Mr Stephen Luff, gave evidence. He is the Captain of the local brigade of the Rural Fire Service. The Rural Fire Service attends road accidents and Mr Luff attended the impact with which this matter is concerned. He gave evidence to the effect that the intersection was a "known accident spot" and he was surprised that that there were only two fatal accidents at the intersection of recent years.
11. However, under cross-examination the offender said that he was familiar with the intersection and he had crossed it daily for many years. Later under cross-examination he maintained that he did stop at the intersection. Ultimately, I understood the offender to agree with the suggestion that if he had looked properly he would have seen the deceased's vehicle. However I have a note and memory (noting that judges generally do not get a transcript of the evidence in sentence proceedings) that the offender was adamant that he did not see the deceased's vehicle.
12. Noting the agreed facts in these circumstances I am not persuaded that any issue with the construction or layout of the intersection should be taken into account in determining the seriousness of the matter.
13. Ms Kluss puts in her written submissions (see paragraph 9) and emphasised in oral submissions that the matter is one of momentary inattention. The Crown submits that the matter is "on a continuum" but was not momentary inattention. The Crown submitted that the matter involving the death of Mr Sinclair was "below mid range" and the matter involving the grievous bodily harm to Mrs Sinclair was slightly below mid range, given the injuries and the ongoing issues being endured by Mrs Sinclair as set out in the Victim Impact Statement.
14. Button J (Hoeben CJ at CL, N Adams J agreeing) observed in Wraydeh v R [2020] NSWCCA 309 at [28] the offender's "moral culpability 'lies along the continuum between those indicators'". That is the case in the matter presently under consideration.
15. In the guideline judgment of Whyte Spigelman CJ said on the issue of objective seriousness in matters such as this at [228]: "In the above list of aggravating factors, items (iii)-(xi) are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion."
16. I have however had regard to the other aspects of the guideline judgment, in particular the factors set out at [216]-[217]. Paul Sinclair died. Gail Sinclair received injuries which despite the ongoing sequelae are towards the lower end of what is contemplated by grievous bodily harm. There were a number of people put at risk, namely any one in a vehicle in the near vicinity but particularly Paul Sinclair and Gail Sinclair. There are no other aggravating features present in this case.
17. In all of the circumstances I am of the opinion that the matter is most certainly not one of momentary inattention. The matter is far more serious than that noting the roadway concerned, the fact that the offender was familiar with the roadway and had travelled over that piece of road regularly, the fact that vehicles on that open freeway could be expected to be travelling at or about the speed limit, the fact that on the offender's evidence his vision was impaired by the A pillar of his vehicle and the complete failure of the offender to ensure it was safe to traverse the freeway. However, it is not a matter where there is an abandonment of responsibility. After much contemplation given the factors I have just enumerated I have reached the conclusion that it is a matter where the moral culpability of the offender so far as his manner of driving is concerned can be described as "high". However the matter is at the lower end of matters where the moral culpability of the offender is high.

Nature of offending is Death by Dangerous Driving cases

1. In R v AB [2011] NSWCCA 229 at Johnson J said [101]-[102]: "In R v Scott [1999] NSWCCA 233, Levine J (Carruthers AJ agreeing) said at [17]: 'Offences under s52A are public offences. Everyone has some idea of what they are about. Everyone is involved as a driver, passenger or pedestrian with what goes on on the highways and streets of this State. It is a very public crime. The public are entitled to have sentences imposed that make it perfectly clear that conduct of this kind in an environment in which so many of the public are involved in their daily affairs, will be appropriately punished.' [102] It is the unfortunate fact that offences under s52A Crimes Act 1900 can cause death or serious injury to persons in the driver's vehicle, in other vehicles which happen to be in or near the street at the time, or to pedestrians unlucky enough to be in the area when the offence is committed. The lethal or potentially lethal consequences of s52A offences mean that relatives or friends of an offender, or complete strangers, may be killed or injured through the course of driving which constitutes the offence."

General Deterrence

1. The Crown Prosecutor in oral submissions put that the aspect of general deterrence "must achieve primacy" in the sentencing exercise. The Crown referred to the court to the decision of R v Manok [2017] NSWCCA 232 at [78]-[79]. In that decision Payne JA and Wilson J in separate reasons came to the conclusion that sentence of two years to be served by Intensive Correction Order was manifestly inadequate (see [14] per Payne JA and [90] per Wilson J). The Court exercised the residual discretion not to disturb the sentence imposed at first instance. McCallum J (as her Honour then was) concluded that the sentence imposed at first instance did not entail "specific or manifest error" (see [61]).
2. Wilson J (in Manok) said at [78]-[79]: "In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL. [79] That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress."
3. The decision of Whelan v R [2012] NSWCCA 147 was also referred to at the sentence hearing, in particular the additional comments (Schmidt J having given the leading judgment) of Allsop P at [4], namely: "The consideration and choice of a sentence for an offence contrary to s 52A(1) may be one of extraordinary difficulty. A sentencing judge may well be faced with an offender of otherwise good character who faces the potentially catastrophic consequences of imprisonment, yet that offender has taken the life of another by the kind of misconduct in paragraph (a), (b) or (c). The views expressed in many cases such as R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252 reflect the fact that the charge of a motor vehicle is one that is of great responsibility. The community expects such instruments of danger to be controlled responsibly. General and specific deterrence are important as is the statement of the sentencing court of the public denunciation of dangerous driving. That does not however require that every error of judgment, tragic in its consequences, demands incarceration. If it be necessary to state it for any judicial officer, the Crimes (Sentencing Procedure) Act 1999 (NSW), s 51 requires that a court not sentence an offender to imprisonment unless satisfied that no penalty other than imprisonment is appropriate. The evaluation, here, by the sentencing judge, of an appropriate non-custodial sentence was, in my view, both reasonable and just."
4. Hoeben CJ at CL in WW v R [2012] NSWCCA 165 also referred to the need for general deterrence in sentences imposed in respect of offences contrary to s 52A of the Crimes Act (see [69]ff). That decision involved a young driver, which this offender is not. Be that as it may, clearly general deterrence has significant work to do in any sentencing exercise such as the matter presently under consideration. WW also involved a young driver (17 years, 3 months at time of the offence) and one who was using a mobile phone immediately prior to impact.

Victim Impact Statement

1. A comprehensive Victim Impact Statement from Mrs Sinclair was read on to the record by the Crown Prosecutor at the sentence hearing. Mrs Sinclair attended the sentence hearing by audio visual link. Clearly the late Mr Sinclair was a much loved husband and father who is and will be greatly missed. For what it is worth, the Court extends its condolences to Mrs Sinclair and the family of the deceased Mr Sinclair.
2. No reasonable person could have listened to that Victim Impact Statement and not be stirred emotionally. That statement clearly, comprehensively and eloquently sets out the immediate and long term harm that offending such as in the matter presently under consideration. Clearly the death of Mr Sinclair will have a long and lasting impression on his widow and family.
3. I have already indicated that there are a number of other medical and other reports annexed to the statement. From those I have been able to determine that Mrs Sinclair suffers ongoing sequelae as a result of the injuries she sustained. I have read and thoroughly considered each of those reports. Included in those reports is one from Chris Volkov, physiotherapist which commences with, "We have now been seeing Gail for 7 months for a range of symptoms including concussion, vertigo, musculoskeletal conditions through the neck, shoulder, and back regions, all of which subjectively appear attributed to her motor vehicle accident". There are a number of reports from Mr McMahon the Neurosurgeon as well as the results of various tests and pathology.
4. I note and have regard to the decision of R v Tuala [2015] NSWCCA 8. The Crown does not submit that the contents of the Victim Impact Statement enlivens any of the factors of statutory aggravation in s 21A(2) of the Crimes (Sentencing Procedure) Act. Rather, the Crown submits, at least as I understood the submission that the effect on the victim is a relevant matter for the court to consider in the instinctive synthesis process of determining the appropriate sentence in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act. Clearly, that must be the case.

Criminal History

1. The offender was born on 21 June 1988 and accordingly was 31 at the time of the offence and 32 at the time of sentence. He has no matters recorded on his criminal history. He obtained his Learner's Licence on 19 November 2004 and his Provisional Licence in 2005. He has been licenced ever since. He has received one traffic infringement relating to unrestrained passengers in 2011. The offender is entitled to be dealt with as a person of prior good character.
2. I simply observe however that as the Court of Criminal Appeal has observed on a number of occasions it is driving offences that often bring persons of otherwise good character into conflict with the criminal law.

Subjective Case

1. The accused gave evidence at the sentence hearing. Understandably he was distressed. He lives on his parent's farm on Brungle Road, Gundagai, near Jackalas, which is a map locality with a few houses some 5 kms or so from Gundagai on the Brungle Road, which is a "back road" from Gundagai to Tumut.
2. The evidence continued that he "vaguely" remembered the accident on 24 August 2019. It is still an issue with the offender as to how the accident occurred. He said that he told the truth to the authors of the psychological report and the Sentence Assessment Report.
3. Specifically about the impact he said that he was "terribly sorry" for what had occurred, he wished he could turn back time and he just wished that things were better. When he was reminded by his counsel about the Victim Impact Statement he said that he was very sorry for the loss of Mrs Sinclair's husband and for the trauma that he caused he was very sorry.
4. The transcript will contain only the words spoken by the offender. It would have been blatantly obvious to any person observing the demeanour of the offender when those words were spoken that he is profoundly and genuinely remorseful. I have not the slightest hesitation in finding on balance that the offender is remorseful.
5. Since the impact he has regularly consulted Dr Wright, his General Practitioner (who has provided a brief report) who has suggested medication and counselling, both of which the offender has undertaken. He has completed the Traffic Offender's Programme.
6. Further, because of this matter he has been stood down from the Rural Fire Service. Mr Luff, whose evidence has already been mentioned explained that this was partly because of this matter the offender's licence has been suspended. The offender went on to say that in his duties with the Rural Fire Service he has attended accidents on the highway. At the scene on 24 August 2019 he assisted in whatever way he could. He saw Mr Luff at the scene. Mr Luff in his evidence said that he initially thought that the offender was there in his capacity as a member of the Rural Fire Service.
7. The evidence continued that if he is given a chance to stay in the community he will continue to keep working and if ordered to do so would undertake unpaid community work.
8. I have already referred to some aspects of the cross-examination of the offender. The offender in effect agreed that vehicles travelling at 110 km/h could be expected on the freeway at any time of the day or night. He accepted that he had an obligation to stop and check for traffic before entering or crossing the freeway.
9. In re-examination the offender maintained that the A pillar of the vehicle obstructed his vision to an extent. Initially he said it was the B pillar as he did to the author of the psychologist's report. However, it was clear at the end of the evidence that he meant the A pillar. Clearly, the offender did not make any or adequate check of vehicles on the freeway. If his vision was obscured it was for him to double check and ensure it was safe to proceed.
10. There are numerous testimonial references as part of the subjective material, one of which is from Mr Luff. He spoke very highly of the offender in particular in the offender's capacity as a volunteer with the Rural Fire Service. Mr Luff said that he would "campaign" for the offender to return to the Rural Fire Service.
11. Kay Elphick, the offender's mother also gave oral evidence. She confirmed that the offender came from a "close knit" family and that the offender has experienced difficulty with sleeping since the impact. To her observations the offender's relationship is a positive one.
12. The offender's mother also spoke of her son's commitment to the community, particularly through volunteer work such as with the Rural Fire Service. The offender is of considerable assistance on the family farm particularly with the heavier manual tasks.
13. In addition to the oral evidence from the offender a volume of written material was tendered. In particular there is a report dated 10 November 2020 under the hand of Anita Duffy of Duffy Robilliard Psychologists and a number of testimonial references including one from the Mayor of the Cootamundra Gundagai Regional Council.
14. The hearing of this matter was initially listed on 27 November 2020 on which day the court had an abundance of time to hear the matter. The matter was adjourned essentially because of the late service of the report of the psychologist, the Crown indicating that that report raised issues that required investigating. The report is dated 10 November 2020 and was made available on 24 November 2020 and only then when my Associate made inquiries of the availability of any written material. The time has more than come for there to be more strict compliance with the relevant Practice Notes.
15. Further, Ms Duffy in the penultimate paragraph of her report advocates for the imposition of a non-custodial sentence. The time has more than come for the authors of such reports, particularly those who author a great many of these reports to understand that it is not the task of an expert to be the advocate for an offender. As Lonergan J said in Atkinson v Coles Supermarkets [2020] NSWSC 1063 at [23]: "Schedule 7 of the UCPR provides the expert Code of Conduct. This is not a meaningless incantation. As made clear in paragraph [2] of the Schedule titled "General duties to the Court": 'An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the court impartially on matters relevant to the area of expertise of the witness.'"
16. The report indicates that the offender is now 32 years of age, he described symptoms consistent with post-traumatic stress disorder and he is fearful of going into custody. He is a local from the Gundagai area who went to Year 10 at school but described himself as "not so good at reading and writing". He has held employment in rural and earthmoving type occupations. He is a volunteer with the Rural Fire Service.
17. Clearly the offender was distressed following the incident with him eventually attending upon his general practitioner after not being able to sleep for two days. He has experienced suicidal ideation. He has been receiving counselling. He has maintained regular contact with his general practitioner. The author of the report set out (top p 4) that the offender reported "extreme distress over the death and injuries to the occupants of the car in the accident". Later at p 5 the author notes that the offender thinks about the incident every day and has deep sorrow over causing the death of the driver and injury to the passenger. This fortifies my earlier finding that the offender is remorseful.
18. The offender has recently commenced an intimate domestic relationship with a lady called "Cassie", from whom he has obtained considerable support.
19. There was an account of the incident given to the author of the report. I understand this was what caused the matter to be adjourned. The offender said that he had been working on his uncle's farm earlier that day and went to the Tumblong Tavern to have a meal. He said he had been travelling slowly and was still in first gear when he began to cross the highway.
20. The report then goes on to recount that the offender told the author that he recalled looking both ways and not seeing anything coming. The reality is that this simply cannot be the case. The visibility was such that if the offender had looked properly he would have seen the vehicle being driven by Mr Sinclair. The offender also told the author of the report that he was near a sign which might have hidden the car from his line of sight. He also said that the pillar of his vehicle could have impeded his vision of the road. I have dealt with this issue earlier in these reasons.
21. The author administered a comprehensive personality questionnaire. It was noted that on clinical scales he obtained a highly elevated score on the Anxiety measure and significant results on Post Traumatic Stress Disorder and Major Depression.
22. The offender is assessed as being unlikely to re-offend. I have no difficulty in finding on balance that the offender is unlikely to re-offend. Given the lack of record, the nature of the offending and the fact that the offender continues to seek counselling of his own volition entitles him to a finding on balance that there are good prospects of rehabilitation.
23. The author opines that the offender would be compliant with a community based order. I have no doubt that is indeed the case.
24. Dr Jessica Wright, the offender's treating general practitioner, has provided a letter confirming that the offender consulted her soon after the incident, that the offender was "distraught" and that the incident has had an effect on the offender's mental health. She advocates a non-custodial sentence be imposed, but with respect, in quite emotive terms.
25. Testimonial references were written by the following: Mr Stephen Luff, NSWRFS Group Captain Gundagai South; AJ McAlister, Mayor, Cootamundra-Gundagai Regional Council; Ian Doughty; Ross Tout; Penelope Nicholson; Rebecca Cannon; Peter Readford; Brad and Jess Field; Elizabeth Britt; Kay Elphick, the offender's mother, Mark Elphick the offender's brother, Kate Lenehan, Director of "Agstock Pty Ltd", Member Report indicating the offender's involvement with the Rural Fire Service; Cutting from the Gundagai Independent of 13 August 2020; and Reference from Ms Margaret Molineaux.
26. I have read and considered all of the testimonial references. It speaks well of the offender that he can assemble an impressive set of references from a cross-section of the community. The offender is spoken of in glowing terms, noting his commitment to the Rural Fire Service and the community in general. The offender apparently has a good work ethic. Many of the referees speak of the remorse expressed by the offender. I have already dealt with the issue of remorse. The referees also speak well of the offender's honesty and integrity. None of that is in question. The references are a poignant reminder, not that one is necessary, that matters such as this are tragedies on a number of levels.

Competing Submissions

1. Ms Kluss in her written submissions (MFI 1 on sentence) reproduces the facts and then submits the matter is one of momentary inattention. I have already dealt with the issue of the seriousness of the matter at some length.
2. The submission is made - at least as I understand the submission - that the Sentence Assessment Report is positive. I agree with that assessment. The offender is assessed at a low risk of reoffending. The offender has displayed a capacity to engage with interventions and has expressed a willingness to undertake community service work. He has been assessed as suitable to undertake such work.
3. Ms Kluss submits that any aggregate sentence would be three years or less and the court could direct that any such sentence be served by way of Intensive Correction Order. The Crown submits that only a sentence of full time custody is appropriate in the matter under consideration.
4. So far as the issue of the assistance of the offender on the farm it was put that goes to the subjective mix rather than hardship to third parties. In any event the evidence does not get to the "truly, wholly or highly exceptional" case in any event - see Hopley v R [2008] NSWCCA 105 at [37] per Johnson J.
5. The written submissions also refer to the report from Duffy Robilliard, with which I have already dealt. Reference is made to the Guideline Judgment of Whyte and I have already dealt with that. I have dealt with the Victim Impact Statement. Ms Kluss also refers and annexes the statistics kept by the Judicial Commission and refers me to the decisions of R v Gagliano [2020] NSWDC 359, a decision of my colleague Mahony SC DCJ and R v Raymond [2019] NSWDC 679 a decision of my colleague Judge Hunt. The Crown submitted correctly that those two matters involve impacts between motor vehicles and pedestrians.
6. R v Gagliano involved an impact between a vehicle being driven by the offender and a pedestrian who was crossing a suburban street at an intersection controlled by traffic lights with the offender turning left contrary to a red traffic control arrow. The wheels of the vehicle drove over the deceased. Judge Mahony SC found (at [101] that the matter "…was not a case of momentary misjudgement or inattention, but rather, carelessness which abrogated his responsibility to other road users". At [105] his Honour said that the matter "…fell towards the lower end of the range for an offence pursuant to s 52A…" The offender was 52 and of prior good character. The matter involved an early guilty plea. A sentence of 2 years was imposed to be served by way of Intensive Correction Order.
7. Judge Hunt in the matter of Raymond also imposed a sentence of 2 years to be served by way of Intensive Correction Order but also ordered the offender perform 400 hours of community service. That matter also involved a charge of Fail to Stop and Assist. The matter involved an early guilty plea. A low range PCA offence attaching to a Certificate pursuant to s 166 of the Criminal Procedure Act was dealt with by way of Community Corrections Order. The offender had no record. That matter involved impact with a pedestrian shortly after 11pm. The offender had a blood alcohol reading of 0.057. The offender was travelling at between 56 and 67 km/h in a 50 km/h zone. The Crown submitted that the objective seriousness fell to or about the mid range (see[18]). There was no available footpath.
8. His Honour went on to describe (see [21]) "The dangerousness, taking into account the uncertain road conditions and driving at a speed over and above the speed limit, was to fail to keep a proper look out to be able to react to that unexpected circumstance in time to totally evade collision with the deceased.." His Honour went on (see [22]) to describe the objective seriousness at the top of the low range.
9. Those decisions are with respect of little assistance. Those decisions and the matter presently under consideration are incommensurable.
10. While dealing with other cases it is worth considering the facts in Manok from which I have extracted above. The facts are set out by McCallum J (as her Honour then was) at [27]-[32]. The offender in that matter was significantly sleep deprived and fell asleep twice the second time being very shortly before the vehicle he was driving impacted with a telegraph pole. Two passengers in the vehicle died as a result of their injuries. The court was dealing with two counts contrary to s 52A(1)(c). An aggregate sentence of two years imprisonment to be served by way of Intensive Correction Order was imposed.
11. This is a convenient point to deal with the statistics annexed to Ms Kluss' written submissions.
12. The "post reform" statistics of a sample of 15 cases indicate that in respect of offences contrary to s 52A(1)(c) of the Crimes Act, seven received an Intensive Correction Order and seven received full time custody with one receiving a Community Corrections Order. Of the seven Intensive Correction Orders imposed, six were for a period of 2 years. Of the custodial sentences the total sentences ranged from 30 months to 5 years.
13. The "pre-reform" statistics involve a sample of 113 cases and accordingly are of slightly greater utility. Of those 46 received sentences of full time custody, one Home Detention, four Periodic Detention, 42 Suspended Sentences, three Community Service Orders and seven s 9 bonds. The custodial sentences imposed range from 18 months to 6 years.
14. I have carefully considered the statistics however I warn myself about the use of those statistics conformably with cases such as Hili & Jones v The Queen [2010] HCA 45 and Brown v R [2014] NSWCCA 215 at [81] per Garling J. I also note the comments by the Chief Justice in SS v R [2016] NSWCCA 197 at [61]ff.
15. For completeness I note that in Whyte at [229] Spigelman CJ said: "The guideline for offences against s 52A(1) and (3) for the typical case identified above should be: Where the offender's moral culpability is high, a full-time custodial head sentence of less than three years (in the case of death) and two years) in the case of grievous bodily harm would not generally be appropriate."
16. The guideline sets out the lower end of the appropriate sentence.

Intensive Correction Orders

1. Section 66 of the Crimes (Sentencing Procedure) Act provides: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
2. There has been a considerable amount of litigation on intensive correction orders, the latest decision (at least at the time of the preparation of these reasons) being Wany v DPP [2020] NSWCA 318. The controversy (for want of a better word) commenced with the decision of R v Pullen [2018] NSWCCA 264. Thereafter there was R v Fangaloka [2019] NSWCCA 173, Casella v R [2019] NSWCCA 201, Karout v R [2019] NSWCCA 253 and Cross v R [2019] NSWCCA 280. Fangaloka and Karout were subject to applications for Special Leave to the High Court - see [2020] HCASL 12 and [2020] HCASL 56 respectively - with both applications separately being dealt with "on the papers" with Gordon and Edelman JJ concluding in Fangaloka that "…The Application does not give rise to any reason to doubt the correctness of the decision of the Court of Criminal Appeal…". In Karout Gordon and Edelman JJ concluded that "…The proposed grounds…have insufficient prospects of success to warrant a grant of special leave".
3. The doctrine of precedent dictates that judges at first instance should follow Fangaloka and Karout.
4. Basten JA (Johnson & Price JJ agreeing) in Fangaloka said at [65]-[66]: "The better view is that the legislature has, appropriately, acted upon the available evidence by requiring the court to have regard to a specific consideration, namely the likelihood of a particular form of order addressing the offender's risk of reoffending. That obligation, imposed by s 66(2), is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3). Nor does the legislation limit the consideration of community safety to a means more likely to address the risk of reoffending; it merely identifies that as a mandatory element for consideration. [66] There is no doubt that community safety can operate in different ways in different circumstances. It is conventionally accepted that a purpose of punishment, including by way of imprisonment, is to deter the offender from further offending; it is also accepted that removal of an offender from the community for a period may have a protective function. The purpose of s 66, on this approach, is merely to ensure that the court does not assume that fulltime detention is more likely to address a risk of reoffending than a community-based program of supervised activity. Consistently with that view, s 66 does not seek to address potentially conflicting demands of community safety in the short term, as opposed to the longer term, and the risk that leniency will be abused. In short, there is nothing in s 66 which favours an ICO over imprisonment by way of fulltime custody. Further, while s 66 expressly referred to s 3A, it did so, not by identifying it as a set of "subordinate" considerations, but as mandatory considerations. It would be wrong for a court to treat every consideration other than the means of addressing the risk of reoffending as a subordinate consideration."
5. Hoeben CJ at CL agreed with the judgment of Fullerton J in Karout with Brereton JA dissenting. Fullerton J said at [90]: "Adopting and applying that analysis (with which I agree), I consider that were the Legislature to have intended to impose on sentencing courts an obligation to give paramount consideration to community supervised programs as a means of ensuring community safety as one of the purposes of sentencing in s 3A(c) of the Sentencing Act, or to impose on a sentencing court a statutory obligation to give reasons for concluding that the other purposes of sentencing in s 3A, alone or in combination, dictate that even where the offender's risk of reoffending is such that community protection can be sufficiently addressed by an ICO, a sentence of full-time custody is the appropriate sentencing outcome, I would have expected the Legislature would have made that plain when the 2018 amending Act was passed."
6. Her Honour went on to say at [94]: "The fact that his Honour made positive findings as to the applicant's good prospects of rehabilitation and that he was unlikely to reoffend, findings which might, in addition to a finding of special circumstances, have supported the exercise of the power in s 66 for the making of an ICO, did not dictate that an ICO was the appropriate sentencing outcome. Consistent with the obligation in s 66(3) that his Honour also take into consideration the purposes of sentencing in s 3A of the Sentencing Act and any relevant common law sentencing principles, it is clear that in declining to make an ICO the objective seriousness of the applicant's offending and the principles of general deterrence (being amongst the mandatory considerations his Honour was obliged to consider under s 66(3) in deciding whether the power to make the ICO should be exercised) overwhelmed other considerations that were in play."
7. Wany v DPP involved an appeal to the Court of Appeal from a decision from a Judge of the District Court determining an appeal from the Local Court. The Court found jurisdictional error and remitted the matter to the District Court. McCallum JA (Meagher JA, Simpson AJA agreeing) said at [64]: "That is not to say that, having reached a conclusion favouring an ICO on that issue, the sentencing court cannot still refuse to make such an order. The weight to be given to the outcome of that determination is then a matter within the discretionary judgment of the sentencing judge. So much is made plain by s 66(3); and see the remarks of Basten JA in Fangaloka at [65]. But the point of the section is to require the sentencing court to consider that question without any preconception in favour of incarceration as the only path to rehabilitation."
8. Her Honour went on to say at [68]: "Mr Game noted that, in Kirk, both the description of the offence and what was regarded as a defence in the relevant legislation were regarded as being jurisdictional, as was the fact that the offence was determined not according to the rules of evidence, because the defendant was called as a witness by the prosecution. In circumstances where Parliament has provided for different ways of serving a custodial sentence and has conferred power on the sentencing court to make the determination as to which should be adopted, I see no reason why the method of serving the sentence to be imposed should not be regarded as jurisdictional. The language of the statute is clear. Community safety "must be" the paramount consideration. When considering community safety, the sentencing court "is to" make the assessment specified. As Basten JA explained in Fangaloka, that obligation "is not stated to be in derogation of the more general purposes of sentencing outlined in s 3A, nor in derogation of other relevant matters: s 66(3)" but it is mandatory."

General Remarks

1. In passing sentence I will need to give proper effect and regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act. Section 3A sets out the purposes of punishment, namely: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and other persons from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, and 7. to recognise the harm done to the victim of the crime and the community.
2. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives no other sentence is appropriate. At least since the decision of Zamagias [2002] NSWCCA 17 the initial consideration is whether any other sentence is appropriate. If the answer is in the negative the next consideration is the length of the sentence followed by the consideration of how the sentence is to be served.
3. In this matter given the offending, in particular the failure to take any or adequate precautions to ensure that there was no oncoming traffic and the general circumstances including the fact that the driving was on the Hume Freeway, I am firmly of the opinion that no other sentence other than imprisonment is appropriate. Although there are only two offences on which the court is passing sentence, this is an appropriate matter for the court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.
4. In respect of the count involving the death of Mr Sinclair the appropriate sentence is one of 2 years and 3 months, which indicates a starting point of 3 years. In respect of the count involving grievous bodily harm to Mrs Sinclair the appropriate sentence is 18 months indicating a starting point of 2 years. If separate sentences were imposed there would need to be some partial accumulation to recognise the separate victims in the matter. A total sentence of 3 years is appropriate.
5. Now, the consideration as to how the sentence is to be served. I have dealt with the authorities relating to Intensive Correction Orders earlier in these reasons. Community Safety is a mandatory consideration. Given the nature of the offending and findings that the offender is unlikely to re-offend while I have considered community safety as I am required by the Act to do I am of the opinion that it is not a factor that weighs heavily in this sentencing exercise.
6. A determination of whether an ICO is more likely to address the offender's risk of re-offending involves what Deane J described in Jago v District Court of New South Wales (1989) 168 CLR 23 at 57 as "an undesirably, but unavoidably, large content of essentially intuitive judgment". I have found that the offender is unlikely to re-offend. Again, given the nature of the offending and the finding I have made that the offender is unlikely to re-offend I am simply unable to find that the ICO is more likely to address the offender's risk of re-offending.
7. Section 66(3) of the Crimes (Sentencing Procedure) Act provides that I must consider s. 3A (the purposes of punishment) and other common law sentencing principles. These common law sentencing principles include general deterrence.
8. I am also reminded of what Fullerton J said at [94] of her judgment in Karout which is extracted above at [93] of these reasons. I am of the opinion that in this matter given the seriousness of the offending noting what reasons I have under the heading "Assessment" at paragraphs [18]-[36] of these reasons and the need for general deterrence, despite what is undoubtedly a strong subjective case it is not appropriate for the sentence to be served by way of Intensive Correction Order.
9. However, I am firmly of the opinion that there should be a finding of special circumstances. The age of the offender, the fact that this is his first time in custody and a need for an extended period of supervision to ensure he receives appropriate treatment for the issues set out in the Duffy Robilliard report and assistance in reintegration into the community all go to justify a finding of special circumstances.

Orders

1. In respect of the offences to which the offender has pleaded guilty he is convicted.
2. The offender is sentenced to an aggregate sentence of 3 years imprisonment with a non-parole period of two years.
3. The non-parole period commences today 19 January 2021 and expires on 18 January 2023. The balance of term on parole commences on 19 January 2023 and expires on 18 January 2024. The offender is to be released to supervised statutory parole at the expiration of the non parole period.
4. The offender is disqualified from driving for a period of two years in respect of each matter with the disqualifications to be concurrent.
5. The "back-up" offences attaching to the Certificate Pursuant to s 166 of the Criminal Procedure Act, 1986 are marked "Dismissed".

Amendments 20 January 2021 - Typographical error para 18 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: 20 January 2021