R v Gagliano

The offender's evidence

1. The offender tendered a report of Dr C Pollicina dated 7 March 2020 (Ex 1). Dr Pollicina was a registered psychologist to whom the offender had been referred on a mental health treatment plan by Dr S Puglisi on 16 April 2019. Her first assessment of the offender was carried out on 17 April 2019 and up until March 2020, the offender had received a total of eight counselling sessions. Under the heading "Personal History", the author set out his family, educational and employment history. Dr Pollicina noted evidence of past depressive episodes in 2014 and 2018, the latter relating to workplace bullying. She recorded her impression of the offender upon assessment as a man who was "a very tormented, depressed, anxious and remorseful person". Upon formal testing, he presented with the following symptoms: " - extremely severe depressed mood - severe level of anxiety - moderate to high level of stress - marked feeling of guilt and remorse - acceptance of his responsibilities for the offence committed - very concerned about his future and preoccupied about the legal consequences of his offence and the negative impact these consequences could have on his family and on his capacity to provide for his wife and children. - ruminating thoughts about the incident for which he has been charged - frequent flashbacks of the incident - occasional insomnia."
2. She was of the opinion that the offender was affected by "moderate to severe Post Traumatic Stress Disorder with extremely severe depression and fear anxiety". The offender's current disorders were as a result of the motor vehicle accident on 1 April 2019 and Dr Pollicina was of the opinion that the offender would require regular psychological support and treatment over the next 12 months. In her report she set out a treatment plan for the offender which was all community based. She also opined that the likelihood of recidivism of similar offending behaviour by the offender would be very low, provided the treatment plan is put in place.
3. Exhibit 2 was a certificate of completion of the Traffic Offender Intervention Program awarded to the offender on 30 March 2020.
4. Exhibit 3 was a court assessment from that program, noting that the offender was an active participant and contributed to each session of the program.
5. Exhibit 4 was a report from Dr S Puglisi dated 2 February 2020 describing the offender as a "Very courteous and respectful person. He is a great family man and has high moral standards. He has a jovial and caring personality."
6. Dr Puglisi noted that since the accident the offender has experienced enormous stress which has affected his personality and mental health. As well as having psychological counselling, he had been prescribed an anti‑depressant. He was described as being genuinely sorry about what happened on 1 April 2019.
7. Exhibit 5 comprised two testimonials written by Mr and Mrs Cusumano and Mr and Mrs Sammarco, both of whom speak highly of the offender's character, work ethic and devotion to his family and community. Both testimonials confirm the profound effect the accident has had on the offender, and his sorrow for the loss of the family of the deceased. Mr and Mrs Sammarco noted that the offender's own father innocently died when he was 18 years old in a car accident, by a driver who fell asleep at the wheel, following which, the offender took on a role to support his mother and siblings.
8. Exhibit 6 was a statement of service from the offender's employer, certifying his employment since 16 May 2016 as a maintenance technician (electrician).

The offender's oral evidence

1. The offender gave evidence that upon completing the year 12 Higher School Certificate he immediately commenced an apprenticeship with the State Rail Authority as a fitter and machinist. He completed that apprenticeship in four years and worked for State Rail for a period of 29 years and left at age 47. He has been in constant employment since, and with his present employer since 16 May 2016.
2. The offender gave evidence that he had been married for 19 years and has two children, a daughter aged 17 and a son aged 14 years. He confirmed that when he was 18 his father died in a motor vehicle accident, and said it was a very difficult time for him. As he was the eldest, he helped his family by having two jobs and assisted with the family expenses and caring for his siblings. He is the main bread-winner of his family and his wife works part‑time.
3. The offender gave evidence that at the time of the offence his wife was suffering a bad back, which was a recurring problem which affected her work. He told Mr Johns, the author of the SAR, that at the time of the motor vehicle accident he was preoccupied with his wife's injuries. He meant that he was concerned for her suffering a sore back and a permanent back injury, and was concerned about the seriousness of that injury. His wife was seeing a physiotherapist that day.
4. The offender gave evidence that he accepted the Agreed Facts as being correct. When asked how he felt about causing the death of the deceased, he said: "I am devastated and very upset. I'm very sorry."
5. He had spoken to his wife about his feelings on more than one occasion and had gone to church and prayed for the deceased and lit a candle for him. He had noticed changes in himself following the accident. He did not go out, he felt lesser of himself and found it hard to face his family and children. He was very sorry about the offending.
6. The offender gave evidence that he had sought professional help from Dr Pollicina, and had had eight counselling sessions. He intended to continue seeing Dr Pollicina as the counselling helped him.
7. He gave evidence that his licence had been suspended when he was charged and he had not been driving since. He was still working by getting picked up and using public transport. He worked in the Sydney metropolitan area, but had to attend different locations. The offender gave evidence that he assisted his son while he was growing up by helping with soccer coaching and as a manager, and transporting him to training and games, for which he received no payment.
8. In cross-examination, the offender conceded that the day of the offence was not the first time he had driven through the intersection at Milton Street and Georges River Road. He had done that on numerous occasions, including turning left from Milton Street into Georges River Road. He lived a short distance of less than three kilometres from the intersection. He gave evidence that he was aware that the intersection was governed by traffic lights and that he was aware that there was a pedestrian crossing on Georges River Road at the intersection. He had seen pedestrians using the crossing before.
9. The offender agreed that he had an elevated driving seat from his Toyota Prado 4-wheel drive vehicle, but when asked whether that gave him better vision of the traffic in front, he said "I don't know". However, he said "being elevated has advantages". He agreed that when turning the corner he had an obligation to ensure that the path was clear of pedestrians and that obligation was more important where there was a pedestrian crossing.
10. The offender gave evidence that he was not aware that there was a red arrow for vehicles turning left onto Georges River Road at the time he proceeded through the intersection. He denied deliberately driving through the intersection and gave evidence that he checked the traffic lights before rounding the corner. He agreed that he would have seen a red arrow if it had been illuminated. The offender gave evidence that he did not intend to go through a red light and that he did not to his knowledge go through a red light. However, he had entered a plea of guilty to the charge because he had seen the accounts given by witnesses which confirmed that there was a red arrow when he proceeded through the intersection. He said "I don't believe I went through it but I understand that I have."
11. When asked about the green pedestrian "walk" sign, the offender said "I can't recall if it was green or starting to flash."
12. When asked whether he deliberately went through it, he said "Never, no". When it was put to the offender that he had told the police he was not looking at the pedestrian "walk" sign, he said he was looking at the traffic lights. When it was put to him that he should have done, he answered "possibly".
13. The offender agreed that it was an important safety measure to check pedestrian lights. In this case he did not remember if he was able to see the light. When it was suggested to him that he did not check the pedestrian light, he said "I may not have checked it".
14. The offender confirmed that he was not aware that the deceased was on the pedestrian crossing, nor the two Tarm sisters. He denied deliberately proceeding through the pedestrian crossing and said that he checked it before proceeding but did not see anyone. When asked how he explained that, he said "I don't know how I missed the pedestrians". The offender referred to vegetation on the side of the road, together with a telegraph pole and a traffic pole, which may have obscured his view. Further, the pillar on his car may have obscured a blind spot as he did not see the pedestrian.
15. It was put to the offender that he had told the author of the SAR that his view was obstructed by vegetation and that was one reason why the offence occurred. He answered: "Yes I do. It explains why I did not see him."
16. The offender was cross-examined about the traffic lights by reference to the photographs in Ex B1 to B4. It was suggested to him that his vision of the intersection as he approached it was not obscured in any way, to which he agreed, however, he said there were obstructions to his vision. When it was put to him that he had difficulty accepting the truth of what he did and accepting responsibility for his conduct, the offender said: "No, I have pleaded guilty and I find myself very responsible. I am very sorry for what I did."
17. It was put to him that part of his mind cannot accept responsibility for his conduct. He replied: "I accept what I did and fully accept what I did. I've entered a plea of guilty and I'm very sorry for the deceased losing his life. I lost my father at 18 years in a motor vehicle accident and understand how upsetting it is. It was devastating for me and my family and I want to be as truthful as possible. At no time did I see him. I accept that I went on the red light."
18. The offender denied rushing through the intersection. He said: "I didn't see him, I'm in disbelief at what happened."
19. He agreed when it was put to him, that if his view of the pedestrian crossing was obscured, it made it all the more important that he obeyed the traffic lights.
20. When asked about his wife's back injury, the offender gave evidence that it arose a few years ago and seemed to be serious on the day of the accident. He did not know what the issue was, but his wife had seen a doctor. He did not remember whether he told the police about it on the day, or when he was interviewed one week later. Nor was it referred to in the psychologist's report. When asked why he raised it for the first time when interviewed for the SAR in March 2020, he said "I don't know. I believe there was reference in some reports."
21. His wife was in pain that day and had a physiotherapy appointment and was not going to work. He accepted that police had asked him if anything had been playing on his mind at the time of the accident and he had not mentioned his wife's back injury. It was put to him that it was a recent thing that he relied on to find an excuse, which he denied.
22. The offender gave evidence that his licence had been suspended and he may have to work in Wollongong in the near future. Not having a licence made his work difficult, however, he planned to drive when he licence was returned and felt comfortable with driving, however, he said "but I must be very careful".
23. The offender gave evidence that being at risk of a term of imprisonment had weighed heavily on his mind and led to a deal of stress and anxiety on him and his family. He agreed he had made no effort to contact the family of the deceased.
24. In re-examination, the offender gave evidence that he did not have the contact details of the family of the deceased. When asked whether there was any reason why he had not contacted them, he said he wanted to but did not know if he should.
25. The offender's wife Carmela Gagliano gave evidence on his behalf. They were married for 20 years with two children and had a very close relationship. Before the motor vehicle accident on 1 April 2019, she described the offender as "Outgoing, fun of the party, very loving, always there for everybody. He was the spine of the extended family and a wonderful person."
26. Since the accident, she had noticed changes in him. He was utterly very distressed, very emotional and very depressed. She had recommended that he seek medical treatment. The offender did not want to socialise and was not himself at all.
27. Mrs Gagliano gave evidence that the offender had spoken to her about how he feels. She said that he was so sorry for the victim and the family. They had attended church and had prayed for the victim and his family and had lit candles for them. They also said prayers at home and she was very concerned for him. He was the main bread-winner and she worked part-time. She had suffered a bulged disc at L4/5 over a year ago and had a problem with her back on the date of the accident on 1 April 2019. She was seeing a GP and had physiotherapy on that day. She was off work that week and required help from the offender to get dressed. Her back injury had been a recurring problem and she was in a bad phase at that time. She still has back problems, but treats it with ice and Neurofen.
28. In cross-examination, Mrs Gagliano gave evidence that her back pain was caused by housework. She had medical documents to support her injury and treatment.
29. When asked whether the offender had explained to her why the accident happened, she said that he had told her briefly. When asked whether he had given her a reason why it occurred, she gave evidence that the offender "just remembers driving through the lights, looking at a side-mirror and seeing a man tumbling."
30. When asked whether she was told whether he was worried at the time about her back problems, she said "I know he was worried". She could not remember whether he said it was on his mind at the time of the offence.
31. Mrs Gagliano gave evidence that the offender was mainly stressed for the victim and his family. He had mentioned once contacting the deceased's family, saying "It would be nice to say sorry". She told him that he could not, and to leave it in the hands of the solicitor.

The offender's submissions

1. The offender relied on an outline of written submissions in which it was submitted that he was entitled to a discount of 25% for the plea of guilty entered in the Local Court. Although there was no Standard Non-Parole Period as a statutory guidepost, the offender conceded that s 5 of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") is crossed, however, ultimately, a head sentence of two years is within range, having regard to the objective seriousness of the offence, combined with the offender's subjective case. Learned counsel for the offender submitted that the imposition of an Intensive Correction Order ("ICO") with additional conditions, is an available alternative to full‑time custody.
2. Learned counsel submitted that the objective seriousness here is towards the lower end for an offence pursuant to s 52A(1)(c) of the Crimes Act 1900. It was submitted that the criminality is one of momentary inattention as distinguished from abandonment of his responsibility as a driver.
3. It was submitted the court would have consideration to the following mitigating factors pursuant to s 21A of the CSPA. The offence involved no planning, the offender has no criminal record, the offender is a person of good character, he is unlikely to reoffend, he has good prospects of rehabilitation, he has pleaded guilty and has demonstrated remorse and empathy to his referees. By his plea and the signing of the Agreed Facts, it was submitted that the offender has unreservedly accepted full responsibility for the offence.
4. It was submitted that one of the purposes of sentencing referred to in s 3A of the Act is to promote rehabilitation and this could be best achieved by way of an ICO in order that the offender may receive ongoing assistance in the community. It was submitted that pursuant to s 66 of the Act, a finding could be made that the offender was not a risk to community safety. Alternatively, it was submitted that special circumstances are made out based upon it being the offender's first time in custody, combined with the need for a lengthy parole period for ongoing counselling.
5. In his oral submissions, learned counsel for the offender rehearsed his written submissions. In his oral evidence the offender had clearly demonstrated empathy for the deceased and his references spoke highly of him as a man of good character. The offender was not a young man, which in this case was in his favour, as he had been driving for many years with a good record showing no major offences.
6. It was submitted the court would accept that the offender was genuinely remorseful, that he was unlikely to reoffend, and that his prospects of rehabilitation were good. Further, there were strong subjective factors to be taken into account and the moral culpability for his offending fell towards the lower end of the range.
7. Counsel characterised the offender's case as one of momentary inattention, or at least towards that end of the scale, as against a complete abandonment of his responsibility as a driver. The offender had no explanation for not seeing the deceased on the pedestrian crossing, but he had not tried to reduce his role, or shift the blame for the collision. It was submitted that the photos of the intersection showed that there was foliage which obscured one of the traffic lights at the intersection and it was submitted that the vehicle ahead of the offender may have obscured the traffic light on the northern side of the intersection. In those circumstances, the offending fell much closer to the lower end of the range.
8. In response to a Crown submission listing the aggravating factors set out in the guideline judgment, of the 11 factors, nine did not apply, that is, those numbers (iii) to (xi). This affected the importance of general deterrence in sentencing here, and meant that a lower sentence than the guideline should be imposed. The offender submitted that in R v Davies [2000] NSWCCA 84, a case relied on by the Crown, where the appellant drove through a red light and pedestrian crossing causing death, the Court of Criminal Appeal held it should not be regarded as conduct amounting to momentary inattention or misjudgement. There were, however, important distinguishing features in that case including a degree of speed, the sentencing occurred after trial and there was no remorse. The offender's moral culpability was therefore higher than the offender here. Further, at [51] the court held that it was not a case of abandonment of responsibility. In that case the majority held that a sentence of 3 years imprisonment was appropriate.
9. The offender also distinguished Thai v R [2009] NSWCCA 314, referred to by the Crown, on the basis that in that case the offender drove through a red light, and had entered a late plea. However, it was held, at [59], that the criminality was low.
10. It was submitted that the imposition of an ICO was a significant penalty. The court would accept here that the offender was genuinely remorseful, not only by his plea of guilty, but as expressed in his evidence.
11. As to the mandatory disqualification, the offender noted that he had been suspended from the date of the accident for a period of 13 months. He needs his licence for work and the court would take into account that he was unlikely to reoffend. In those circumstances, the minimum period of 12 months disqualification should be imposed.
12. It was submitted that the SAR demonstrated that the offender was a low risk of reoffending. He was assessed as suitable for community work and he had a loving and close family. If the court found a head sentence of two years or less, the option of an ICO became available with conditions which could include community work and home detention.

The Crown submissions

1. The Crown referred to the guideline judgment in R v Whyte [2002] NSWCCA 343, which identified a typical case of an offence under s 52A as having the following characteristics: "(i) young offender (ii) of good character with no or limited prior convictions (iii) death or permanent injury to a single person (iv) the victim is a stranger (v) no or limited injury to the driver or the driver's intimates (vi) genuine remorse (vii) plea of guilty of limited utilitarian value."
2. The Crown submitted that Parliament in proscribing a maximum penalty of 10 years imprisonment, had made clear that offences causing death or grievous bodily harm, even in the absence of intention to cause injury, are to be regarded as a serious crime. In sentencing for such offences, the court must give close attention to the degree of moral culpability involved and this was a critical component of the objective seriousness of the offence.
3. The Crown set out the following list of aggravating factors: 1. "Extent and nature of the injuries inflicted 2. Number of people put at risk 3. Degree of speed 4. Degree of intoxication or of substance abuse 5. Erratic or aggressive driving 6. Competitive driving or showing off 7. Length of the journey during which others were exposed to risk 8. Ignoring of warnings 9. Escaping police pursuit 10. Degree of sleep deprivation 11. Failing to stop."
4. The Crown submitted that in assessing the objective seriousness of the offence, the court should determine whether the combination of circumstances applicable are such that a finding can be made that the offender has abandoned responsibility for his own conduct. It was submitted that a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement. Where the offender's moral culpability is high, a full-time custodial sentence of less than three years in the case of death would not generally be appropriate.
5. The Crown set out relevant sentencing authorities illustrative of the application of the above principles. Each is dependent on its own facts. It was submitted that momentary inattention when driving at a low speed or on an isolated country road may involve culpability of a significantly lower order than momentary inattention in an urban environment where the traffic is dense, with intersections controlled by traffic signals.
6. The Crown submitted that the following factors are relevant to the consideration of objective seriousness and the offender's moral culpability here: 1. "The offender was driving a Toyota Prado - an elevated, sizeable 4-wheel drive vehicle. 2. The offence occurred just before 10am on a Monday morning in an inner west suburb of Sydney, on a busy intersection governed by traffic lights. 3. At the time traffic in the area was heavy. 4. The offender stopped at a red light at the intersection on Milton Street, with vehicles in front of him, intending to turn left into Georges River Road. The left turn necessitated crossing through a pedestrian crossing with pedestrian lights. Navigating any corner safely requires care and attention. This requirement becomes all the more important when navigating a corner across a pedestrian crossing, particularly in a vehicle the size of the offender's. 5. The circular light for traffic travelling straight ahead on Milton Street turned green, the arrow light for traffic turning left onto Georges River Road turned red and the green pedestrian light for foot traffic across Georges River Road turned green. 6. At this time the deceased and the Tarm sisters commenced crossing Georges River Road on the green pedestrian light - the deceased from the south and the Tarm sisters from the north. 7. As these events coincided, the offender turned his vehicle left from Milton Street to Georges River Road, through the red arrow light, through the green pedestrian light and into the path of the deceased on the pedestrian crossing. 8. The collision resulted in the death of the deceased."
7. The Crown submitted that the offender's conduct here should not be regarded as a case of momentary inattention or misjudgement. Rather, there was a gross failure to pay due attention and keep a proper lookout both before and during the course of the left-hand turn. In accelerating his vehicle from a stationary position to undertake the left-hand turn, through a pedestrian crossing, the offender failed to register or take appropriate action in respect of a red arrow light, a green pedestrian light, and the deceased on the pedestrian crossing.
8. The Crown referred to the Victim Impact Statement from the deceased's brother and daughter, which expressed the depth of their suffering as a result of their loss. The Crown emphasised the importance of general deterrence, punishment, accountability, denunciation and recognition of the harm done to the victim and the community in this sentencing exercise. The Crown submitted that general deterrence is of particular importance, relying on R v Manok [2017] NSWCCA 232, where the court said, the need for strong denunciation and general deterrence 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." (per Wilson J at [78] - [79])
9. In accordance with R v Whyte, supra, the Crown submitted that the appropriate sentence is one of full time custody.
10. In respect of the subjective factors, the Crown conceded that the offender was entitled to a 25% discount on sentence. No further discount was available for facilitating the administration of justice pursuant to s 22A. Further, although the offender had no prior criminal convictions, it was submitted that the courts must tread warily in showing leniency for good character in cases of dangerous driving, relying on R v MacIntyre (1988) 38 A Crim R 135 at 139.
11. In respect of remorse, the Crown submitted that immediately after the offence and when interviewed by police a week later, the offender repeatedly denied proceeding through a red light. Further, he had told Dr Pollicina that he thought he proceeded through a green light and that there were several visual obstacles blocking his vision. Mr Johns in his SAR, had stated that the offender "Appears to have minimised his offences, stating that he was being preoccupied with his partner's injuries during the commissioning of the offence. He also reported that his view of the pedestrian crossing was obstructed by vegetation and street signage poles."
12. It was submitted by the Crown that whilst the offender may be genuinely remorseful for the consequences of the offence, he appears to continue to have difficulty accepting full responsibility for his actions, causing the collision with the deceased.
13. The Crown referred to the maximum disqualification period of three years with a minimum of 12 months proscribed by s 205(2)(b) of the Road Transport Act 2013. It was submitted the court must take into account any period of licence suspension when determining the period of disqualification. That period commences on the date the person is convicted by the court unless ordered to commence on a later date, and is extended by any period of imprisonment served for the disqualifying offence. The Crown submitted that no less a period of disqualification than the automatic maximum of three years should apply here. Pursuant to s 206B(5) the court could nominate the date when the period of disqualification expires.
14. The Crown submitted that an ICO, whilst involving substantial punishment, also reflects a significant degree of leniency. The only sentence that will adequately reflect the seriousness of the offence and fulfil the aim of general deterrence and other purposes of sentencing, in this case is one of full-time imprisonment.
15. In her oral submissions the Crown relied on her outline of written submissions. In assessing the objective seriousness of the offending, the evidence as to why the offence occurred was still somewhat unclear. It was submitted that the court should reject the offender's evidence that he had an obstructed view of the traffic lights and the intersection. He accepted that in evidence, and the photos do not support his contention.
16. It was submitted that this was a case of profound inattention, not momentary inattention or misjudgement. At the very least, considering all of the evidence, the offender missed the traffic lights, the "walk" signal and not only the deceased but the other two pedestrians crossing the pedestrian crossing from the northern side. This indicated that the offending was not at the lower end, and not within the exception in the guideline judgment warranting a non‑custodial sentence.
17. The Crown rehearsed her submission relying on R v Davies, supra, in which there was no finding that the offender was driving above the speed limit at the time. It was an important case because the categorisation of objective seriousness had similarities with the present case. Davies was more helpful than the decision in R v Thai, supra, because of Crown concession of momentary inattention in that case.
18. The Crown submitted that the evidence the offender gave as to his vision being obstructed is relevant to the extent of his acceptance of responsibility for his offending. There was no issue that he was remorseful for the consequences of his offending. However, the fact that he had not accepted full responsibility for his actions affected the assessment of his prospects of rehabilitation and his risk of reoffending.

Determination

1. Section 3A of the Crimes (Sentencing Procedure) Act 1999 ("CSPA") sets out the purposes of sentencing as follows: "3A The purposes for which a Court may impose a sentence on an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing similar offences, (c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, (g) To recognise the harm done to the victim of the crime and the community."
2. In Thai v R, supra, Simpson J (with whom McClellan CJ at CL and Hiddern J agreed) said at [56]: "56 In R v Whyte [2002] NSWCCA 343: 55 NSWLR 252, this court reformulated the guideline judgment earlier promulgated in R v Jurisic (1998) 45 NSWLR 209. It held that in cases of dangerous driving causing death, a full-time custodial sentence of less than three years would generally not be appropriate (at [229]). But following Jurisic, this was directed to cases in which the level of culpability was high, or the offender had, in effect, abandoned responsibility. Relevant factors are listed at [216], and include speed, nature of the driving, intoxication by alcohol or other drugs."
3. Simpson J also noted at [57] that in Jurisic, the court implicitly recognised the possibility of a non-custodial sentence in cases of "momentary inattention or misjudgement" (see [206]). As noted by McClellan CJ at CL at [3], the court has not said that momentary inattention will necessarily result in a non‑custodial sentence.
4. In assessing the objective seriousness of the offending here, I accept the submission made on behalf of the offender, that of the aggravating factors outlined in Whyte, supra, only the first two are relevant, namely, the fact of the death of the deceased and that a small number of people were put at risk by the offender's driving. The collision occurred at low speed, i.e. 10 kph, and by turning left at an intersection controlled by traffic lights, proceeding through a red left-hand turn sign and through a pedestrian crossing governed by a green walk sign. The offender put a small number of people at risk on this occasion, namely, the deceased and the Tarm sisters.
5. The offender had been stopped at the traffic lights heading north in Milton Street with one vehicle in front of him in the left-hand lane. While stopped he had ample opportunity to observe the traffic lights on both sides of the intersection, including those on the south‑western and north-western corners of the intersection. He was driving a four-wheel drive vehicle and therefore was in an elevated seating position. Whilst some vegetation to the south of the intersection may have partly obscured the traffic lights closest to his vehicle on the south-western corner, when the lights changed, and the vehicle in front of him proceeded directly through the intersection, as the offender approached the intersection intending to turn left, I find that he would have had a clear and unobstructed view of the traffic lights at the north-western corner, which, at the time, showed a red arrow for vehicles turning left. Furthermore, the green walk light was illuminated and two pedestrians had commenced crossing the road from north to south, and the deceased had commenced to cross from south to north, in the same direction the offender had been travelling. In those circumstances, to proceed to turn left against the red arrow signal, and proceed into the pedestrian crossing, when not only a green walk sign was showing, but pedestrians were crossing from both sides, in a busy urban area, does not amount to momentary inattention. Nor, however, does it amount to an abandonment of responsibility, but rather the lack of aggravating factors, except those set out above, means that the objective criminality of the offending fell towards the lower end of the range for an offence pursuant to s 52A(1)(c) of the Crimes Act 1900, but not at the lower end of that range. The evidence does not permit me to conclude that the offender's conduct was deliberate or reckless, as distinct from careless.
6. As the guideline judgment sets out, general deterrence is important in sentencing for dangerous driving causing death cases. As set out in R v Manok, supra, relied on by the Crown, because of the terrible consequences that can flow from a failure by any driver in the management of their motor vehicle, it is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress, and Parliament has proscribed a maximum penalty of 10 years imprisonment which reflects the seriousness of the offending. I have taken the maximum penalty into account as a guidepost in the sentencing process along with the guideline judgment in Whyte, supra.
7. Specific deterrence is also important in that the offender must understand that being licenced to drive is a privilege which carries with it heavy responsibilities to other road users, particularly pedestrians who are lawfully entitled to be crossing the road at controlled intersections.
8. The offender is entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty entered in the Local Court. I also find that he is genuinely entirely remorseful for his offending and the loss of life of the victim. Notwithstanding his initial statements, namely, that he did not see the deceased, and that his view of the traffic lights was obscured by vegetation, and his later explanation to the Community Corrections officer that he was concerned about his wife's wellbeing and thereby distracted, which provide no real explanation for the collision occurring, I find that the offender now accepts full responsibility for his offending and the consequences thereof.
9. There are significant subjective factors to be taken into account in sentencing the offender who is 52 years of age and otherwise of good character and highly regarded by others in the community. Good character of course has less impact in sentencing for offences pursuant to s 52A, however, I find that he will be a low risk of recidivism and has good prospects of rehabilitation.
10. I have had regard to the two Victim Impact Statements that were read in court. It is clear that the victim, whilst elderly, was an active gentleman who was well loved by his family and had plans to travel internationally to meet other family members. His loss in such tragic circumstances has had a profound impact on those who loved and cared for him. The Victim Impact Statements are a poignant reminder of the wider impact on the community of tragic accidents that occur on our roads. I have therefore taken the Victim Impact Statements into account, however, I have not taken them into account so as to aggravate the offender's moral culpability for his offending.
11. I accept the submissions of the offender's counsel that the decision in R v Davies, supra, relied on by the Crown, as being closely comparable to the present circumstances, may be distinguished in that in Davies, the offender was much younger (26 years of age) with a significant driving record including a previous offence of dangerous driving, the sentencing occurred after trial, the offender had shown no remorse, and notwithstanding that the offender drove under the speed limit, he was still travelling at 60 kph through a controlled intersection when he collided with the young pedestrian. I accept the offender's submission that in Davies, the offender's moral culpability was higher than the offender here.
12. Having regard to all of the circumstances, including the fact that the offender was not a young driver as envisaged in the guideline judgment, the absence of any of the aggravating factors as outlined above, and given this was not a case of momentary misjudgement or inattention, but rather, carelessness which abrogated his responsibility to other road users, I am satisfied that the threshold contained in s 5 of the CSPA has been crossed, and no penalty other than imprisonment is warranted in all of the circumstances. The appropriate sentence is, in my view, a term of imprisonment of 2 years.
13. In considering whether that sentence ought be served by way of an ICO, I have regard to what Harrison J said in R v Pullen [2018] NSWCCA 264 at [84]: "84 In determining whether an ICO should be imposed, s 66(1) makes 'community safety' the paramount consideration. The concept of 'community safety' as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone. It recognises that in many cases, incarceration may have the opposite effect. It requires the court to consider whether an ICO or a full-time custodial sentence is more likely to address the offender's risk of re-offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more like to occur with supervision and access to treatment programs in the community."
14. Whilst community safety is said to be a paramount consideration in determining whether the sentence is to be served by an ICO, the Court of Criminal Appeal in Karout v R [2019] NSWCCA 253 has held that it is not a paramount consideration over and above the purposes of sentencing set out in s 3A. Nor is it a mandatory consideration - see Sahyoun v R [2020] NSWCCA 87 at [157] per Walton J. His Honour also set out the following passage from Parente v R [2017] 96 NSWLR 633; [2017] NSWCCA 284 at [115] which informs the evaluative nature of the determination: "115 As to the appropriateness of imposing a sentence of imprisonment to be served in some alternative way, it is important to have regard to the following from the judgment of Howie J in R v Zamagias at [28], and see similarly in the judgment of Johnson J in Douar v R at [72]: 'The appropriateness of an alternative to full-time custody will depend on a number of factors, one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purposes of punishment. The court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative the less likely it is to fulfil all the purposes of punishment (citation of authority omitted)."
15. I accept the Crown's submission that general deterrence is of particular importance in sentencing for offences pursuant to s 52A, relying on R v Manok, supra. I note, however, in that case, McCallum J (as her Honour then was) referred to the remarks of Allsop P (as his Honour then was) in Whelan v R [2012] NSWCCA 147 at [4] as follows: "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 (a), (b) or (c). The view expressed in many cases such as R v Jurisic and R v Whyte, reflect the fact that the charge of a motor vehicle is one 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 judgement, 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."
16. Here, I am satisfied that notwithstanding the objective seriousness of the offence which resulted in the loss of life, as outlined above, it fell towards the lower end of the range for an offence pursuant to s 52A and manifold purposes of punishment as set out in s 3A can be fulfilled by a sentence being served by way of an ICO with conditions. In so finding, I have taken into account the question of community safety and find that that safety will not be placed at risk given the very low risk of this offender, who has no significant traffic record and is of mature age, will be to the community. I therefore intend to impose a sentence to be served by way of an ICO.
17. I further find that the offender should be disqualified from driving for a period of 2 years, which is to include his period of suspension from driving, which commenced on 1 April 2019. Pursuant to s 206B(5) of the Road Transport Act 2013, his period of disqualification will terminate on 31 March 2021.

Orders

1. I make the following orders: 1. You are convicted of the offence of dangerous driving occasioning death, drive dangerous pursuant to s 52A(1)(c) of the Crimes Act 1900. 2. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of 2 years. 3. Pursuant to s 7(1) of the CSPA the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today. 4. You must report to the Community Corrections Office at Burwood as soon as practicable, but no later than 7 days from today. 5. The standard conditions of the order apply: 1. You must not commit any offence, and 2. You must submit to supervision by a Community Corrections Officer. 1. The following additional conditions apply: 1. A community service work condition requiring the performance of 300 hours of community service. I note that this condition may be suspended by Community Corrections due to current COVID-19 restrictions. 2. You are to undergo the treatment plan outlined by Dr Pollicina in the report dated 7 March 2020 for as long as Dr Pollicina requires. 1. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. 2. If the order is revoked you may be required to serve all or some of the period of your sentence in full-time custody. 3. You are now directed to attend the Court Registry where a copy of this order will be explained and given to you. 4. You are disqualified from driving for a period of 2 years to date from 1 April 2019 until 31 March 2021. 5. A copy of Dr Pollicina's report dated 7 March 2020 is to be provided to Community Corrections. 6. Sequence 2 and Sequence 3 on s 166 Certificate are withdrawn and dismissed.

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: 09 July 2020