R v Feltham

FACTUAL CIRCUMSTANCES

1. The detail of the factual circumstances giving rise to the offence has been provided to the Court in Agreed Facts. They indicate that the offender was driving in a southerly direction along Old Tumbarumba Road towards Tumbarumba. He was employed as a contractor at the Hyne Timber Mill in Tumbarumba.
2. The offender was approaching the junction of Old Tumbarumba Road and Batlow Road. The junction, or intersection of those roads, is on a sweeping right-hand bend on Batlow Road. Although described as a "sweeping bend", it is a comparatively tight right-hand bend for vehicles travelling north.
3. Both roads are sealed bitumen and were in good order and condition. The road was dry, and the weather was fine. 6:30am was approximately 30 minutes after sunrise.
4. Old Tumbarumba Road is a single unmarked lane until the introduction of edge lines and double unbroken dividing lines immediately approaching the intersection with Batlow Road. Batlow Road is a single lane in each direction with double unbroken lines separating the lanes.
5. As the intersection with Batlow Road is approached on Old Tumbarumba Road there is a "Give Way Sign Ahead" sign posted on both sides of the road, approximately 106 m before the intersection. A sign indicating the curved T-intersection is located approximately 82 m before the intersection. The "Give Way" sign is situated a short distance before the actual Batlow Road intersection.
6. As the offender approached the junction with Batlow Road, the deceased, Owen Fayle, who was 39 years of age, was riding a Kawasaki motorcycle north on Batlow Road approaching the bend adjoining the T-junction with Old Tumbarumba Road.
7. The Agreed Facts include aerial photographs of the location, including a depiction of the point of impact between the two vehicles.
8. As the offender approached the T-junction, he failed to give way at the Give Way sign, and turned across the northbound lane of Batlow Road.
9. The utility and the motorcycle collided approximately 15 to 20 metres south-west of the junction at a location indicated by the witch's hat in the aerial photograph included in the Agreed Facts.
10. The impact was primarily to the front of the Mazda utility towards the off-side or, as described in the Agreed Facts, in front of the driver's position. The aerial photograph indicates the impact was close to the centre double lines.
11. Unassisted by any expert report or opinion being tendered, it appears likely, based on the aerial photographs, that the offender had a reasonably clear line of vision towards the south along Batlow Road as he approached the intersection on Old Tumbarumba Road.
12. Whether any foliage or traffic signage might have restricted what otherwise appears to be a reasonably clear line of vision, is not able to be determined on the tendered material.
13. However, his vision to the left for approaching traffic coming from the east would not have opened up until he was much closer to the intersection.
14. The Crown concedes that the collision has occurred as a consequence of momentary inattention.
15. Given the configuration of the T-junction, and the fact that there was substantial vision down Batlow Road for what would appear from the photograph to be at least 100 to 200 metres, the momentary inattention must be understood to be constituted by not noticing the bike approaching from the south.
16. It appears highly likely that the offender, who was familiar with the road and the particular junction, having failed to notice the approaching motorcycle coming from his right, must have slowed his vehicle to some extent in order to look to his left at the possibility of vehicles approaching from the east.
17. The offender said that after he came through the intersection "as I seen him coming, I swerved."
18. Of importance in assessing the degree of negligence by the offender is a consideration of just how the offender's vehicle was slightly, or partially, on the incorrect side of Batlow Road.
19. If, as I suspect, the utility cut the corner to some extent and in progressing onto Batlow Road had not yet got completely onto its correct side but was, in effect, still in the process of completing the turn, the swerve which is referred to may have been a swerve to the left for the offender's vehicle in an attempt to avoid the collision.
20. Alternatively, if the approaching motor-cycle was effectively "flattening the curve" as he approached the right-hand bend, or perchance swerved to his right to try and avoid Mr Feltham's vehicle, then the offender's vehicle may have swerved to his right in an attempt to avoid the collision.
21. The Agreed Facts are in the following terms: "The Utility was partially on the incorrect side of the Batlow Road. The Crown does not allege the offender was driving on the incorrect side of the road. This is explicable by the swerve action he described in his record of interview."
22. In all of the circumstances, and in the absence of any expert opinion evidence, the Court proceeds on the basis of the Agreed Facts as settled between the parties.
23. The action of the offender in his driving which is causally related to the accident, is his failure to have observed the approach of the motorcycle before entering into the intersection.
24. The fact of the offender's vehicle being partially on the incorrect side of the road and the impact occurring adjacent to the centre line is not, in the circumstances set out in the Agreed Facts, a further aggravating feature.
25. The fundamental cause of the accident was the momentary inattention in which the offender failed to observe the approaching motorcycle.
26. The Agreed Facts include a statement that "the speed at which the offender and deceased was driving could not be determined."
27. Following the impact, Mr Fayle was ejected from the seat of his motorcycle and thrown over the bonnet and roof of the utility. He was seriously injured including extensive limb and pelvic fractures, and a fracture of his thoracic spine.
28. The offender immediately got out of his vehicle at the scene and checked on Mr Fayle. He found him to be unresponsive. The offender tried to find his mobile phone in order to call '000' and was unable to locate it.
29. Another driver stopped at the scene and the offender borrowed that driver's mobile phone and called '000'.
30. The other driver observed Mr Feltham to be hysterical and very upset. He was shaking so badly whilst on the phone that on one occasion he actually dropped the phone. The other driver ended up speaking with '000' and gave instructions as to how to get to the scene.
31. Quite apart from the shock of the accident itself, and notwithstanding that the Agreed Facts are silent on this point, Mr Feltham's reaction is all the more understandable when it is the fact that he knew the rider of the motorcycle both from their shared place of work and, the Court was informed, socially.
32. Emergency services attended including the Toll Care Flight Helicopter. Mr Fayle was given blood and adrenaline and CPR was conducted for close to an hour. A defibrillator was also used.
33. The pelvic and femoral fractures sustained by the motorbike rider would likely have been associated with significant internal blood loss. Mr Fayle succumbed to his injuries and he was declared dead at approximately 8:10am.
34. The offender suffered minor injuries in the collision and, as noted earlier, was treated by paramedics before being conveyed to Batlow Hospital for mandatory blood and urine testing. As already noted, this testing proved negative.
35. After later being conveyed to Tumut Police Station, the offender participated in an electronically recorded interview with police. He described having swerved as he saw the bike coming. He indicated that he had had a good night's sleep, and that he had been driving from Gundagai, where he lived, to Tumbarumba, where he worked at the Sawmill.
36. When he realised the he didn't have his own mobile phone, he waved the other driver down in order to ring '000'.
37. He knew the intersection well and described having driven it "100 times". He said that he couldn't really remember, but thought he was doing about 60 to 70 and that the motorbike was coming "pretty quick".
38. He described how he had tried to swerve away from the motorbike.

OBJECTIVE SERIOUSNESS

1. An assessment of the objective seriousness in a case concerning driving in a manner dangerous requires consideration of the surrounding characteristics of such cases.
2. The guideline judgment in R v Jurisic (1998) 45 NSWLR 209 arose in the context of a Crown appeal against the inadequacy of a sentence imposed by her Honour Judge Tupman for an offence under s 52A of the Crimes Act 1900. Her Honour had directed that the term of imprisonment be served by way of Home Detention under the then relevant legislation.
3. In handing down a guideline judgment following a Crown appeal against inadequacy, the Court described the offences of dangerous driving causing death or grievous bodily harm under s 52A as offences covering a wide range of conduct which varies qualitatively.
4. The Court (Spigelman CJ, Wood CJ at CL, Sully, BM James and Adams JJ) said that the appropriate penalty will depend upon the presence or absence of the following factors, namely: "(i) extent and nature of the injuries inflicted; (ii) number of people put at risk; (iii) degree of speed; (iv) degree of intoxication or of substance abuse; (v) erratic driving; (vi) competitive driving or showing off; (vii) length of the journey during which the others were exposed to risk; (viii) ignoring warnings; (ix) escaping police pursuit"
5. Subsequent to the judgment of the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 with respect to guideline judgments, the Court of Criminal Appeal was given a new statutory power with respect to guideline judgements in s 37A of the Crimes (Sentencing Procedure) Act 1999.
6. In R v Whyte [2002] NSWCCA 343; 55 NSWLR 252, the Court, per Spigelman CJ, Mason P and Barr, Bell and McClellan JJ, exercised that new statutory power, and reformulated the Jurisic guideline. The reformulated characteristics in frequently recurring cases under s 52A are as follows (including the Crown's observations with respect to each of them in the present matter): "(i) young offender - N/A; the offender was 54 years of age at the relevant time. (ii) of good character with no or limited prior convictions - the offender has one conviction from 1990 for mid-range drink driving. Both his criminal history and his traffic record do not disentitle him to leniency. (iii) death or permanent injury to a single person - the offender, through his driving occasioned the death of one person. (iv) the victim is a stranger - the Crown noted that the deceased was a stranger to the offender. [I should immediately correct that observation by the Crown. As I have already indicated, the offender and the deceased were known to each other]. (v) no or limited injury to the driver or the driver's intimates - the offender sustained limited injuries. (vi) genuine remorse - the offender has expressed remorse through the subjective material (vii) plea of guilty of limited utilitarian value - the offender pleaded guilty on the first day of trial. The offender previously indicated a preparedness to plead to negligent driving but this was rejected by the Director. The offender accordingly is only entitled to a discount of 5% (pursuant to section 25D (2) (c))."
7. The guideline in Whyte noted that a non-custodial sentence will usually be inappropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement.
8. Also in the guideline judgment of Whyte, the Court set out relevant aggravating factors which are required to be considered. They are as follows: "(i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop."
9. In the present matter, the extent and nature of the injuries resulted in the death of Mr Fayle. Accordingly, that is an element of the offence and does not operate as an aggravating factor.
10. The number of people put at risk by the offender's conduct and by virtue of his momentary inattention was restricted to the deceased. While it was a remote country road, and in due course another driver came upon the scene, the number of people put at risk does not operate as an aggravating factor in the present matter.
11. While the length of the journey between Gundagai and Tumbarumba was approximately a 1 hour and 15 minute drive, the Crown specifically does not assert that the length of the journey was associated with any relevant risk or increased risk.
12. None of the other aggravating factors operate to aggravate the offending beyond matters intrinsic to the elements of the offence.
13. The guideline judgment of Whyte indicates that the aggravating factors include the degree of speed. I note that the Crown submits that the admitted speed of 60 to 70 km/h contributes to the degree in which the driving was in a manner dangerous.
14. In my view, accepting the offender's estimate of his speed as likely to be reasonably accurate, the speed of his progression across the junction of the two roads played little, if any, contributing cause to the collision.
15. It was his inattentiveness, described by the Crown as momentary inattention, in failing to see the oncoming motorcycle which was the fundamental cause of the collision.
16. In assessing the moral culpability of an offender's driving which occasions the death of another human being, the observations of Simpson J, as her Honour then was, in R v Khatter [2000] NSWCCA 32 at [31] are important to bear in mind: "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 instances of the offence and it is proper for the courts to recognise a continuum, rather than a dichotomy, when assessing moral culpability."
17. In the Crown's submission, the driving of the offender in the present matter, as I have already noted, is to be categorised as momentary inattention. Significantly, the Crown does not concede that it falls at the lowest end of the continuum described by Simpson J.
18. However, the Crown acknowledges that the offender's conduct afterwards and his reaction is consistent with someone with a low level of moral culpability.
19. The description by Simpson J of a continuum has been regularly recognised in the Court of Criminal Appeal.
20. In R v Errington [2005] NSWCCA 348; 157 A Crim R 553 at [27], Mason P observed 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."
21. I also take note of the observations of Hidden J in Markham v Regina [2007] NSWCCA 295 at [25] where his Honour said: "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."
22. Significantly, Hidden J also said at [26]: "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."
23. In the present matter the aggravating factors identified in Whyte are absent. That is a significant factor.
24. Whilst it may be accepted that the objective seriousness and moral culpability of the offender do not fall at the very bottom of the so-called continuum, the present matter clearly falls well towards such a lesser assessment.

VICTIM IMPACT STATEMENTS

1. Two victim impact statements were provided to the Court. The first victim impact statement was from the mother of the deceased. She described missing her son every day and she described the empty space in her heart which aches. She said that his death affected both herself and his younger brother Nelson. She said that life is not the same without him.
2. The deceased's sister, Letishia Fayle, read her victim impact statement in court. Her bravery in doing so should be publicly acknowledged.
3. She described the 7th of March 1981, the birthday of Owen Fayle, as being the day she became a big sister. She described him as being smart, funny, mischievous, kind and loyal. She said he was a good friend to many people and his funeral was filled with hundreds of people from different aspects of his life.
4. She painted a descriptive picture of her brother as a passionate sports fan. She described his proudest role as that of being an uncle to her two children, who are aged 15 years and 11 years of age. Owen had resided with his sister and her children after she became a single mother. She described the children treating him as their dad and not just as their uncle. She described the catastrophic effect on both the children and herself. She spoke of the detail of the loss experienced particularly by the children with the things that they did with Owen.
5. She described her brother as her best friend and the one person in life she could confide in and talk to. She described the children and herself having had, and continuing to access counselling, throughout the three years since his death.
6. Both victim impact statements by members of Owen Fayle's family which were tendered and in one case read in this public forum were emotionally moving and clearly demonstrated the enormity of the impact of the loss of their son and brother.
7. The loss of his life was both senseless and unnecessary. The impact of his death will continue to be felt not only by those family members and particularly by the children of his sister, but by his work colleagues and many friends.
8. As sentencing judges, in the regrettably large number of cases which come before the courts in relation to the death of citizens occasioned by the manner of driving a motor vehicle, we regularly observe the fragility of the hold we all have on life, which is so drastically demonstrated by the negligence and inadvertence, and in the present case, the momentary inattention, which occurs in a matter of seconds.
9. In my public capacity, as a judge of the District Court of New South Wales, I acknowledge the tragedy of the death of Owen Fayle and the impact it has had on his family and friends.
10. Particularly in light of the emotion surrounding the present circumstances and similar cases involving the death of a person as a consequence of driving, I respectfully adopt the observations of Bell P, as his Honour the Chief Justice then was, in Moodie v R [2020] NSWCCA 160, where his Honour commented on the difficulty in sentencing for such offences, at [109]: "… 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 meted out to an offender. The sentencing discretion must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender and also reflect the objective seriousness of the offence, the offender's moral culpability, his or her prospects of rehabilitation and the likelihood or unlikelihood of future offending."
11. In determining an appropriate sentence in the present matter, I will take into account in the manner which is required the impact of the death of Owen Fayle on those who knew and loved him.

SUBJECTIVE CIRCUMSTANCES

1. The subjective circumstances of the offender have been provided to the Court, principally, in an affidavit affirmed by his wife Gaye Feltham. Also tendered are a number of references which I will refer to shortly, together with a number of records from the Murrumbidgee Local Health District Mental Health Services.
2. The offender was born on 6 March 1965 and was 55 years of age at the time of the accident. He is now 59.
3. Mrs Feltham is 57 years of age and she and her husband have been married for 30 years.
4. They commenced going out together as teenagers when Criag Feltham was 16 and Gaye Feltham was 15. They have four children together, a 29-year-old son, and three daughters who are aged 27, 26 and 24.
5. Mrs Feltham describes in her affidavit having had a double mastectomy in 2013 following which her husband and daughters shared the duties caring for her. During her rehabilitation she was not able to drive and her own mother was dying of breast cancer at the same time.
6. Their son and his partner gave birth to a daughter in 2017. At the time the child was born, both her parents, that is the Feltham's son and his partner, were both addicted to the drug "ice". The child would be left at the grandparent's home, when the father and mother of the child went on what was described as an "ice bender". Whilst still a baby, the grandchild was left with the Feltham's almost full-time.
7. When their granddaughter was around 6 months of age, police began visiting the Feltham home on a more regular basis because of the activities of the child's parents. At around that time, the Department of Community Services also became involved.
8. Police advised the Feltham's that although they were caring for the child full-time, the parents, i.e. their son and his partner, could complain to police that they were keeping the child against the parent's wishes. The Feltham's were advised to take legal action to assume parental responsibility of the child.
9. The offender and his wife went to Relationships Australia in an effort to mediate the situation with the child's parents. Mrs Feltham described that after a long time and many court appearances, they were given guardianship of their granddaughter when she was approximately 3.
10. Mrs Feltham described problems with the child with stuttering and also wetting herself, which she was advised was because of the trauma she experienced on occasions when she was with her parents.
11. Mrs Feltham describes in her affidavit ongoing difficulties with their son. She described him having been king-hit in an incident in 2020 following which he was flown to St George Hospital in Sydney, where she said he nearly died. She described his frontal lobe as being swollen with bleeding on the brain.
12. More recently, in March 2024, her son was stabbed in his mid-section. She said that he suffered a collapsed lung and doctors were at the time unsure whether he would survive.
13. Mrs Feltham further described aspects of the extended family life. Her father turns 86 in October and has a number of medical difficulties. He will not leave his house unless he is with either the offender or Mrs Feltham. They bring him frequently to Wagga for doctor's appointments.
14. Mrs Feltham describes the three daughters in a more optimistic light. Their elder daughter is studying oral hygiene at Charles Sturt University, the middle daughter works at a drug and alcohol rehabilitation centre, and the youngest has recently had a child and lives in Sydney.
15. Mrs Feltham described the family's financial situation as not being good. Mr Feltham is the director and sole employee of a metal fabrication business. It would appear that he works as a contractor at the sawmill in Tumbarumba.
16. She said the family have a lot of debts and as a consequence are living frugally at this point in time. She said they no longer go out to dinner. As part of his work he travels from Gundagai to Tumbarumba every work day, leaving at 6am and returning at 6pm. It is approximately 100km from their home to his place of work.
17. She acknowledges an understanding that the offender will lose his licence as a consequence of him pleading guilty to the present matter. She describes the circumstance that he has to use his licence for driving to and from work. She describes him needing to drive to Wagga in order to get steel for the fabricating business.
18. She said he will often work on weekends to help people and will also visit their daughters on weekends to do handyman jobs for them. She said that they live 3 to 4 km out of town.
19. She described her husband as a happy person prior to the accident. She described him enjoying his friendships with his mates. She said he loved his family dearly and was just a hard worker. She said he is a really good person.
20. She said he used to love going fishing, going to the football, and catching up with his mates and having a drink. She said that he used to catch up with half a dozen or so mates and they would meet up at someone's shed. She said they would vent and gossip and support each other.
21. She said he was always happy and always had a laugh. She said he could see the funny side of things. She said he would like a joke and to play around with the kids.
22. She said that he is completely changed now. She described him feeling that he couldn't now have fun. She said he feels that he should not be allowed to have fun. She said he is very emotional at Christmas time. He is very quiet whereas he used to love Christmas and the family gathering together. She said he will not go to his friend's places as much anymore.
23. She said she feels the offender feels that he cannot have fun because Owen cannot. She said that she can pick the days when he's had a bad day and that he drives over the spot where the accident occurred twice every day.
24. She described her husband as a very deep thinker and said he is just so horrified that the accident happened. She said he is still seeing a counsellor. She said sometimes he has really bad days. She said he has no "go" in him.
25. She described trying to joke with him and said he would just not respond. She said he is more serious than he once was and not as confident as he ever used to be. She said that Craig does not think he can have fun. He feels like it was a privilege that was taken away from another person. The offender has told her that he never thought he would be in such a situation. He had driven the particular road for 27 or 28 years.
26. She described the shocked state he was in on the day of the accident. After they got home to Gundagai from the police station at Tumut, he was so bad she took him to the hospital where he was admitted. She said that he thought he could just go and kill himself. She described that he had thought of three ways to kill himself and was adamant about walking out onto the highway.
27. Mrs Feltham advised the nurses about her husband's suicidal ideation and he was admitted to the Mental Heath Unit. He stayed there for about 10 days. She said he was still getting help with his mental health.
28. The Health Records which have been tendered did not include the initial admission referred to in Mrs Feltham's affidavit. Whether he was initially taken to Gundagai District Hospital or whether he was brought at that time to Wagga Base Hospital is unclear.
29. Notes from the Mental Health Case Manager at the Tumut Mental Health Community Clinic indicates an appointment attended by the offender and his wife on 9 December 2020. The notes refer to an earlier admission on 13 November 2020. The doctor's notes make reference to an admission at Wagga Base Hospital Mental Health in the context of an Adjustment Disorder following a fatal motor vehicle accident.
30. The notes reveal that he had been prescribed anti-depressants which had helped him with his mood symptoms but he was still having problems with his sleep. The offender reported ongoing struggles with what were described as "constant catastrophising thinking patterns." He said that he felt worse after meeting with his lawyer and being told about all the negatives that could happen. He described also dealing with the stress of his son who had his own legal issues. He expressed concerns and constant rumination around the financial and legal ramifications post the accident. He was advised about the recovery program admission and if that was not available, he should be referred for psychological support and a mental health care plan through his GP.
31. A further mental health note described as a 'Discharge Summary' records notes from a doctor on 7 July 2021. It described the offender having received case management which included a psychiatric review. He had attended regular appointments. Cognitive Behavioural Therapy Intervention had been explored to assist the offender to gain insight into the accident and provide him with strategies to reduce intrusive ruminating thoughts about the accident. The notes record that the offender felt enormous grief, loss and regret about the accident. The importance of the offender connecting with friends for support was also included in those notes.
32. As I have indicated, a number of references were also tendered.
33. The first was provided by Dr Barbara Cameron who is the offender's General Practitioner. Dr Cameron has known the offender for over 10 years. She said she was providing the reference with both some general background regarding his personal circumstances, as well as to vouch for his good character.
34. Dr Cameron said that the offender had described to her how the accident occurred. He had articulated his distress about causing the death of another person. She described him as filled with sadness and regret about the event.
35. Dr Cameron described the offender as working full-time and being the sole income provider to support his wife and provide full-time care to their 7 year old granddaughter and to the offender's father-in-law who is aged 85 and in frail health. She described the support for the 85-year-old father-in-law as being essential to enable him to remain independent his own home.
36. Dr Cameron described the offender's occupation in servicing sawmill equipment. She said that his job requires him to work at various sawmills in the area and that the effect of the loss of his licence would catastrophically limit his ability to earn an income.
37. The doctor entreats the court to take into account the effect of any penalties on the offender's wider family.
38. Dr Cameron concluded her reference by describing the depression, insomnia, and severe anxiety with marked social withdrawal suffered by the offender as a consequence of his involvement in the accident.
39. The doctor assured the court that the offender had reflected to her his deepest remorse. She said she has continued to witness his severe mental distress in the wake of the accident.
40. The next reference was from Matthew Thomsen who is the Site Optimisation expert at Hyne Timber Sawmill in Tumbarumba. While the description of Mr Thomsen's position with Hyne Timber is not specifically described or explained, he is clearly a highly qualified professional employee in that business. He holds a university degree as a Bachelor of Science and Technology and for some seven years worked in the United States of America in the employ of United States Natural Resources, installing and servicing sawmill equipment worldwide.
41. In the context of his employment at Hyne Timber, Mr Thomsen has worked with the offender for the entire period of his own employment with that sawmill since May 2008. He describes having worked with the offender on many projects throughout his career at Hyne Timber and proffers, in his own words, "without hesitation", that the offender is one of the nicest and most reliable people he has worked with. He describes the offender as his "go-to" person for anything where metal fabrication was required. He described the offender's expertise as "nothing short of world-class."
42. With respect to the effects of the accident, Mr Thomsen highlighted the poignancy of the circumstance that the deceased, Owen Fayle, had also been employed at Hyne Timber.
43. He described what he perceived as the amount of remorse demonstrated by the offender ever since he returned to work in March 2021. He was aware that the offender had sought professional help to cope with the burden and strain which he felt.
44. Mr Thomsen also pointed out in his reference, that as the Deputy Captain of the Tumbarumba station of Fire and Rescue NSW, he was aware of the exact location of the accident, known locally as "White Gate". He said that it Was a known black-spot. He was aware of a number of traffic accidents occurring at that location during the time he has been Australia.
45. The next reference was from Mr John McIntyre. He is the maintenance leading hand of the Hyne Tumbarumba Mill. He has been employed there for 37 years. He has worked with the offender over the past 20 years.
46. Mr McIntyre described the offender as having a great work ethic. He described the offender's qualifications and experience as being a fully qualified boilermaker, welder, rigger and crane driver. He said he would openly share with his co-workers and particularly the younger members of the small maintenance team his overall wealth of knowledge.
47. Mr McIntyre described the offender being part of the maintenance team which he had stayed with over the last 10 years.
48. He described the offender travelling twice daily along the route from his hometown of Gundagai to Tumbarumba to work in the timber mill.
49. To Mr McIntyre's observation, Mr Feltham has not been quite the same since the accident. He said that he was relieved to hear that the offender was getting some specialist help. He said he always puts on a brave face while at work but you can see that his mind is often somewhere else.
50. He described the offender as a great friend, an honourable individual, and a valuable member of the maintenance team.
51. A reference was also provided by Levi Hussell. Mr Hussell does not describe his actual position at the Hyne Mill, but he has also worked at Hyne Timber for the past 10 years. In addition to knowing Mr Feltham at work, Mr Feltham is good friends with Mr Hussell's own father and has been a family friend for more than 20 years. From the perspective of being able to comment on Mr Feltham's character both personally and in the workplace, Mr Hussell described the offender as "a very honest, likeable, reliable, highly skilled, genuine hard worker and a very safety-orientated worker who follows all safety procedures and requirements for all work completed on site."
52. He described the offender out of work as being "no different, he is very well respected within our family and friends at Tumbarumba"
53. Mr Hussell described the tragedy and horror of the accident involving two workers from the same place of employment, one on the way to work and the other on the way home. He described the devastation of the event having affected so many people and having been a very traumatic experience for not only the people involved but family, friends and work colleagues.
54. A further reference was provided by Mr Gregory Blake, a self-employed Hydraulics Technician. Mr Blake sets out that he has known Mr Feltham for over 17 years. He said they frequently have worked together at the Hyne Timber Mill and have formed a mutual friendship based on respect, trust and understanding.
55. Mr Blake said that he recognises that the accident has caused much anguish for both families.
56. He described Mr Feltham as being a decent, hard-working and trustworthy person. He said that he is quietly spoken with a big heart and that he shows pride and care with his work.
57. A further reference was provided by Mr Glenn Muller, who is another employee at Hyne Timber. He describes the offender as a valued team member who is regarded as a mentor and a professional.
58. He described the offender as dedicated, hard-working and innovative. He said that he is a compassionate and kind person who will never miss the opportunity to help others.
59. The last reference also comes from an employee at Hyne Timber. Mr Gary Evans has been the Maintenance Manager/Site Manager at Hyne Timber for the past three years.
60. He describes Mr Feltham as being a very well-respected team-member in the maintenance team. He described him as hard-working and skilled and said that the entire maintenance team speak highly of the offender from both a work and workmate perspective.
61. These many references underscore the tragedy and also the aberration of the act of momentary inattention which led to the death of another Hyne Timber employee.
62. The subjective circumstances and background of the offender starkly illustrates how a person of otherwise good, indeed exemplary character, can, through a lack of appropriate attention whilst driving along a well-travelled road, cause the death of a fellow human being, and in this particular case, a fellow employee.
63. Whilst recognising the good character of the offender and the glowing terms in which he is regarded by those who have worked with him, it is appropriate to make reference to his driving record. That record discloses only one serious offence of driving with the mid-range prescribed concentration of alcohol when he was 25 years of age. He subsequently has incurred a number of speeding infringements to a total of five over a period of 20 years between the ages of 25 and 45.
64. Since 2010, he has incurred only one speeding offence in the 14 years that have subsequently passed.
65. The Crown specifically concedes that his criminal and traffic record does not disentitle him to appropriate leniency.
66. There is no doubt that the offender is contrite, has good prospects of rehabilitation and is highly unlikely to reoffend.
67. The Crown also concedes these positive subjective factors and referred, in written submissions, to the observations of the Court of Criminal Appeal in R v Tzanis [2005] NSWCCA 274 at [28] which recognised that such subjective circumstances may be deserving of considerable weight.

COMPARATIVE CASES

1. The Court has been referred to the Judicial Commission Statistics with respect to offences under s 52A(1)(c) of the Crimes Act 1900. The relevant statistics, recognising the blunt instrument that they are frequently described as, reveal 60% of all cases resulting in full-time imprisonment. Approximately 37% result in terms of imprisonment to be served by means of Intensive Correction Orders and some 3% have resulted in Community Correction Orders. Those percentages derive from a total of 130 cases.
2. If one adds a filter of pleas of Guilty and a driver being more than 50 years of age to the statistics, the number of sentences is reduced drastically to a total of 18. Of that small number, only 7 or approximately 39% served full-time terms of imprisonment.
3. The Crown helpfully referred to a number of comparative cases. The Crown's written submissions referred to the brief facts and outcomes in some 27 decisions in the New South Wales Court of Criminal Appeal. They include cases which resulted in Intensive Correction Orders and cases in which substantial terms of imprisonment were imposed. They include some cases of momentary inattention and others involving driving under the influence of alcohol and/or drugs with high levels of moral culpability. They include pedestrians having been killed while crossing on a pedestrian crossing and the driver leaving the scene without stopping to render assistance.
4. The very wide variability in both the factual circumstances and the subjective circumstances of that large number of "comparative sentences" is such that while I have read the various cases, they are predominantly of little assistance in a determination of the present matter.
5. I do, however, make reference to the first of the comparative cases to which the Crown has made reference: R v Balla [2021] NSWCCA 325.
6. The deceased was an off-duty police officer who rode a motorcycle at speed past three lanes of stationary vehicles at a set of traffic lights. The motorcycle was described as "filtering" in that the bike was ridden towards the intersection alongside a vehicle already in the lane. As the motorbike approached the intersection, the light for traffic travelling in his direction turned green. The motorbike accelerated and entered the intersection at a speed of 50 to 60 km/h as he "underpassed" a stationary vehicle in the lane closest to the kerb.
7. The offender, who had approached the intersection from the opposite direction, turned right across the stationary vehicles facing him after the arrow permitting turning had already changed to red. The actions were able to be calculated with precision because a following vehicle had dashcam footage. The approaching motorbike had accelerated when the light for him turned green and he effectively accelerated straight into the side of the turning vehicle driven by the offender. Needless to say, the driver of the bike was killed.
8. The sentencing judge, Judge Hanley SC, had reserved and delivered an extensive and detailed judgment (R v Balla [2021] NSWDC 487). His Honour ultimately determined that an appropriate sentence of 2 years was to be served by way of an Intensive Correction Order.
9. That determination was based on a finding that the offending conduct was momentary inattention for a period of 2 seconds when the right-hand turn arrow changed from amber to red. His Honour rejected the Crown's submission that the case was 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.
10. The Court of Criminal Appeal found no error in the judge's determination of the facts and his finding that the circumstances were properly described as "momentary inattention" and dismissed the Crown appeal against inadequacy of sentence: R v Balla [2021] NSWCCA 325.
11. Another case involving a failure to stop at a red traffic light resulting in an Intensive Correction Order was the matter of R v Quinlan [2022] NSWDC 761. The circumstances of that matter related to the death of a 16-year-old boy riding a BMX bicycle across a pedestrian crossing. The 16-year-old commenced crossing on his BMX bike against a red pedestrian light.
12. The offending vehicle was approaching at right angles from the 16 year old's right. The vehicle was in a four-lane, major arterial road in Wollongong. As the vehicle approached the lights at the intersection, the lights changed to amber. Rather than braking, the offender chose to speed up. As she did so, the 16-year-old cyclist entered the pedestrian crossing on her side of the intersection from the left of the offender's vehicle. The driver immediately braked hard and the wheels of her vehicle locked up. It slid through the intersection, colliding with the cyclist who was killed.
13. Quinlan had offered to plead Guilty to negligent driving causing death, which plea had not been accepted. She had pleaded Not Guilty to driving in a manner dangerous and was found Guilty by a jury after trial.
14. The sentencing judge, Judge Haesler SC, described the "thoughtless decision not to slow but to speed up" was what made the offender morally and legally culpable for the death that occurred. His Honour was not satisfied that it was a momentary lapse of attention or observation but that there was a spontaneous and conscious decision to accelerate rather than to brake.
15. Notwithstanding that his Honour found that what was involved was "more than a momentary lapse of attention", his Honour determined that the appropriate sentence of 2 years should be served by way of an Intensive Correction Order. There was no Crown appeal.
16. R v Zaiter [2021] NSWDC 277 was another matter in which the term of imprisonment was directed to be served by way of an Intensive Correction Order. The offender had been driving in Harris Park when her vehicle continued straight without following the curve of the road which bent to the right. The offending vehicle crossed the solid white "fog line" bordering the north bound lane and travelled some 17 metres towards the western kerb at approximately 50 km/h. The vehicle collided with the kerb and mounted the footpath where it rotated and collided with the deceased who was a pedestrian.
17. Judge Hatzistergos found on the basis of the evidence that neither speed nor alcohol were factors and that the moral culpability of the offender and the objective seriousness of the offending was at the lower end.
18. An early plea of Guilty had been tendered and there was a strong subjective case. The offender was in a state of shock at the scene of the collision which caused the death of the pedestrian and was observed standing next to her car crying and unable to move.
19. The offender knew the deceased as an acquaintance as he was someone who had come from the same village as her husband in Lebanon. They had previously spoken to each other. She had made contact with the deceased's wife to try and offer an apology and support. She prayed for the victim whilst he was in hospital and had visited him while he was in a coma before passing away. She had attended the deceased's funeral.
20. She had attended on psychological and counselling services in the time after the death of the pedestrian.
21. Judge Hatzistergos passed a sentence of 1 year and 10 months which was to be served by way of an Intensive Correction Order.
22. In Zaiter, Judge Hatzistergos referred to a number of broadly comparative cases.
23. These included Whelan v R [2012] NSWCCA 147 which is also referred to and summarised in the Crown's written submissions before me. The appellant in that matter had collided with an oncoming car when he pulled out to overtake a convoy of four-wheel drive vehicles each of which was towing a boat.
24. He collided head-on with an oncoming vehicle. The pregnant female passenger suffered a placental abruption which caused her baby to be born prematurely some four days after the accident and then die approximately a month later.
25. The offender had a strong subjective case, accepted responsibility for his actions and had genuine remorse and good prospects of rehabilitation.
26. The judge at first instance, Quirk DCJ, had imposed a sentence of 2 years to be served by way of an Intensive Correction Order. The offender had been convicted following a trial and the matter proceeded to the Court of Criminal Appeal by an appeal against conviction on behalf of the offender, and an appeal against inadequacy of sentence by the Crown.
27. The Crown appeal against the inadequacy of sentence was dismissed. Allsop P, Davies J agreeing, said at [4]: "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 5(1) 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."
28. It is appropriate to note, with respect, that where Allsop P in that quote referred to the imposition of an ICO as a "non-custodial sentence", he should be understood to have been referring to a "non-full-time custodial sentence".
29. In R v Manok [2017] NSWCCA 232, the offender was driving a vehicle with three passengers. He was experiencing a high level of fatigue and fell into a "micro-sleep". He woke up and saw the car was about to collide with a power pole. He tried to evade the pole but failed and struck it. Two passengers were killed and one suffered grievous bodily harm.
30. At first instance, the sentencing judge, Bosic DCJ, had not been satisfied that there was a degree of sleep deprivation in the manner described in the authorities. His Honour said: "the tiredness was not such as in the circumstances I would consider to amount to sleep deprivation" which would have required the offender to stop driving. The reference to "sleep deprivation" referred to the guideline judgment in R v Whyte. The sentencing judge found the offender's moral culpability as "very low" and "a little above momentary inattention."
31. There was a Crown appeal. Payne JA was satisfied that the Crown had established material error in the findings of the sentencing judge. Wilson J was similarly of the view that the findings at first instance were not open on the evidence. However, both Payne JA and Wilson J would have exercised the residual discretion to dismiss a Crown appeal.
32. McCallum J, on the other hand, concluded that the sentencing judge had not erred in his findings. Her Honour determined that the assessment of moral culpability was open to the sentencing judge and on that basis would dismiss the Crown appeal.
33. This case is an example of the limitation of comparable cases both as to the assessment of moral culpability and the sentencing outcome in that particular case. Notwithstanding that observation however, the case is demonstrative of a higher level of moral culpability than the present proceedings.
34. In R v Banks [2021] NSWDC 827, Judge P Taylor SC passed a sentence of imprisonment of 18 months to be served by an Intensive Correction Order. The accident had occurred when the offender was distracted from the roadway in front of him as he approached a pedestrian crossing. He saw a friend at a bus stop on the side of the road and looked at him and hence was distracted from paying attention to the front of his vehicle. As the vehicle approached the pedestrian crossing, which was a short distance past the bus stop, a pedestrian stepped on to the pedestrian crossing. The offender did not return his gaze to the roadway in front of him and hence did not slow, swerve or brake before colliding with and killing the pedestrian who had almost reached the midway point of the pedestrian crossing.
35. The offender told police that he had "looked away for a second". The sentencing judge recognised there was a short period of inattention, although it had added significance as the pedestrian crossing was visible for some distance as a driver approached.
36. The moral culpability was at the low end of the range, but above the lowest because of the visible presence of the pedestrian crossing. The sentencing judge found the level of remorse to be not only genuine, but substantial, and even "extreme".
37. His Honour found that the inattention was not more than 2 or 3 seconds but that such period was properly to be regarded as "momentary inattention".
38. His Honour made specific reference to R v Steven Barnett [2016] NSWDC 302 in which Yehia DCJ, as her Honour then was, had held that a period of 5 seconds was found to be "momentary inattention". In that matter, the offender had been driving a heavy vehicle at 100 km/h when he collided into a stationary vehicle on the Hawkesbury River Bridge killing the driver. He had been distracted by looking at the water and had been convicted after a jury trial. There had been competing evidence as to the time period of the distraction and, as I have indicated, her Honour concluded that it was a period of 5 seconds. Barnett was sentenced to 2 years imprisonment, to be served by way of an Intensive Correction Order.
39. Two further matters of dangerous driving causing death resulting in Intensive Correction Orders being imposed, have been published by the sentencing judges.
40. In R v Raymond [2019] NSWDC 679, the female offender had been at a party in Berry where she had consumed a number of alcoholic drinks. She had left the party to drive some passengers to the hotel in Bomaderry. She was returning to the party shortly after 11pm.
41. She was driving on the Old Princes Highway near Berry where the roadway was one lane in each direction with double lines down the centre of the road. Two pedestrians were walking in the middle of the lane in which her vehicle was driving. The weather conditions were described as being a layer of fog with poor visibility.
42. Her vehicle was travelling between 56 to 67 km/h at the point of impact. The speed limit was 50 km/h. There was no street lighting and there were no pedestrian footpaths available. When she did see the pedestrians the offender swerved to the right, but clipped one of the two men who was killed.
43. She left the scene and drove 300m back to where the party was being held. She was separately charged with driving with a low range prescribed concentration of alcohol. In circumstances where she was separately charged with the summary offence of the low-range PCA, the Crown did not rely upon the consumption of alcohol as an aggravating factor.
44. The failure to keep a proper look out and driving at a speed which was above the speed limit, in combination with the uncertain road conditions, were the relevant factors which were relied upon.
45. The sentencing judge, Hunt DCJ, found that although the objective seriousness was not at the very lowest end of the range, such as momentary inattention or momentary distraction, his Honour said it did not achieve the objective seriousness of being in the mid-range, which had been the Crown's submission.
46. His Honour characterised the objective seriousness as being at the top of the low-range. Following a 25% discount, his Honour passed a sentence of 2 years imprisonment which was directed to be served by way of an Intensive Correction Order. His Honour also passed sentences for the low-range PCA and failing to stop after the accident of Community Correction Orders in each matter.
47. There was no Crown appeal.
48. The last published comparable in this category is R v Boctor [2020] NSWDC 46. The offender was driving his vehicle at 9:30pm along a residential street in Kellyville. There was low level street lighting and the street had a speed limit of 50 km/hr.
49. A pedestrian was walking along the same street on the road surface directly beside the concrete kerb and gutter. He was walking in the same direction as the offender's vehicle was being driven. The pedestrian was wearing dark clothing and had earphones in his ears to listen to music on his evening walk. As the offender drove his vehicle towards a sweeping right hand downhill bend, he looked to his right at two houses which were then under construction.
50. Whilst the offender continued to look at the houses on his right his vehicle maintained its straight course, while the roadway turned to the right. The offender failed to see the pedestrian walking on the roadway and collided with him. The impact killed the pedestrian.
51. The Defence submission that the offending conduct would fall within the definition of "momentary inattention or misjudgement" was rejected by the sentencing judge, Judge Montgomery. His Honour held that the offender's choice to look to his right at buildings under construction was the deliberate diversion of his attention to something of substance away from his direction of travel.
52. In giving evidence before the sentencing judge, the offender acknowledged a failure to keep a proper lookout. The Crown submission placed the facts of the case as conduct amounting "to a little more than momentary inattention or misjudgement in the circumstances." Judge Montgomery accepted that submission.
53. His Honour concluded that whilst the conduct was more egregious than "momentary inattention" it remained a failure to keep a proper lookout of the road ahead for only a few seconds.
54. The offender had estimated that his period of looking at the buildings under construction was 3 to 4 seconds. Under oath he had properly conceded that estimate to be a guess. CCTV footage was available which indicated that the pedestrian had been illuminated by the headlights of the offender's vehicle for 6 to 7 seconds.
55. The offender was remorseful and of otherwise good character. His moral culpability was found to be at the low end for such an offence. His plea had not been entered at the first available opportunity, but late when the matter was listed for trial. A 15% discount was found to be appropriate. Montgomery DCJ imposed a sentence of 1 year and 10 months which was directed to be served by way of an Intensive Correction Order.

CONSIDERATION

1. It is common ground between the parties in the present matter that the section 5 threshold, namely that there is no alternative to a term of imprisonment, has been crossed. I agree.
2. As I have already indicated, the moral culpability and the objective seriousness of this particular offending, whilst not falling at the very bottom of the so-called continuum of moral culpability, clearly falls well towards such a lesser assessment.
3. The failure by the offender to see the approaching motorcycle, whose speed is unknown, as he approached an intersection which required him to give way, but which also necessitated him looking to his left, has been conceded by the Crown to in fact be, "momentary inattention". Mr Feltham, seeing the motorbike at the last moment and trying to avoid it, performed an action to try and avoid the collision which is accepted by the Crown.
4. The objective seriousness and the level of moral culpability of the present offender clearly falls to a lower degree than numerous of the comparative cases to which I have made reference.
5. I accept the genuineness of his remorse and contrition and clear ongoing effects of this tragedy upon himself and the members of his family. He is entitled to a statutorily mandated discount of 5%. Ignoring the necessity for an abacus, an appropriate sentence is 1 year and 11 months.
6. I have given paramount consideration to the question of community safety. I am satisfied that the offender's risk of reoffending is not more likely to be addressed by imposing a sentence of full-time detention.
7. I have also considered the purposes of sentencing as set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Those considerations include ensuring that the offender is adequately punished for the offence and giving appropriate consideration to general and specific deterrence. The offender is required to be made accountable for his actions and for his conduct to be denounced. The sentence must also recognise the harm done to the victim and to the community, including his family.
8. I am satisfied that the sentence which is appropriate can and should appropriately be served by way of an Intensive Correction Order. I am satisfied that there is sufficient information before me to justify the making of an Intensive Correction Order without obtaining a Sentencing Assessment Report.
9. I take into account the particular circumstances of this offender, living as he does some 4 to 5 km outside Gundagai, and the circumstance that he will have not insubstantial difficulty in making arrangements to endeavour to maintain his contractual employment. This may be by presumably having somebody drive him from Gundagai to Tumbarumba and to such other locations as his service may be required, or perchance to relocate to Tumbarumba for the period of his disqualification and hence his inability to commute the approximate 100 km each way on a daily basis.
10. I am conscious that in many of the comparative cases where an ICO has been imposed, additional conditions including community service work and, in some instances, home detention have been imposed. Those matters were objectively more serious and arose in metropolitan regions.
11. In all of the above circumstances, I do not propose to impose a community service work condition which I would be unable to impose in any event in the absence of an assessment report relating to the imposition of such a condition. I am similarly not of the view that the imposition of a home detention condition is a necessary addition to the standard conditions. Accordingly I have not required assessments with respect to these possible additional conditions.
12. I note the substantial difference in the loss of a licence between somebody residing in a metropolitan region such as Sydney, Wollongong or Newcastle, and the circumstance of somebody who resides in Gundagai, 3 to 4 km out of town. The necessity to hold a driver's licence in order to travel between Gundagai and Wagga Wagga and Gundagai and Tumbarumba and the offender's inability to do so whilst disqualified, will have a significant effect on the offender and, in the absence of him being able to continue his employment, upon his immediate and extended family. They do however, and he does indeed, understand that a disqualification of his licence is mandatory for a period of at least 12 months.
13. Having given careful consideration to what I perceive to be the leniency involved in such an exercise of discretion, I direct that he be disqualified from driving or holding a licence for a period of 12 months from today's date.

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: 27 August 2024