R v Gerard De Groot

The sentence hearing

1. Exhibit A also included the antecedents of the offender. They included minor drug offences which were treated by way of a small fine in 1990, and a common assault charge offence which was dealt with by way of a s 9 bond in 2003. There were also a number of traffic offences recorded in the Australian Capital Territory.
2. The offender's New South Wales traffic record report recorded minor traffic offences in 2003 and 2004, two speeding offences in 2010, and three critical risk breaches in 2013 for driving whilst fatigued, following which his licence was suspended on the basis of accumulated demerit points.
3. Exhibit A included a Victim's Impact Statement from the widow of Mr Paterson. I refer to that below.
4. Exhibit A also included a Pre-Sentence Report prepared under the hand of E Crawley on 24 February 2016. That report noted that the offender had a close and supportive relationship with his partner of one and a half years, who was presently incarcerated in Canberra until July 2016. His domestic situation was complex, and he had four children to four different partners.
5. The report noted that the offender was illiterate, but had developed various strategies to conceal it. He had worked as a truck driver for approximately 24 years, and was not in receipt of workers compensation benefits. He was now unfit for work and apprehensive about trucks.
6. The report noted that the offender had a history of drug use, having commenced using cannabis at age 14, amphetamines at age 20 and ice intravenously approximately 8 years ago. He had attended a residential rehabilitation facility in Wagga Wagga in October 2015 to address his amphetamine dependency and to seek further treatment in respect of his stated diagnosis of Post Traumatic Stress Disorder ("PTSD"). He had left that program prematurely because of a rule prohibiting the smoking of cigarettes.
7. Under the heading "Attitude to Offending", the report noted: "Mr De Groot's reflection on the offences is only in relation to the effect on his life alone. He described a plethora of physical and mental health issues that have manifested since the offence. There was no discussion regarding the victim, the victim's immediate and extended family, or anyone who witnessed the aftermath of the offence. The offender stated "It was both our faults. If they had gone two kilometres further there was a rest area". Mr De Groot also stated "Both cars were over the fog line". Regarding his drug use, Mr De Groot said "There was a little in my system. Pot stays in your system"."
8. The offender was assessed as a low-medium risk of reoffending. His identified criminogenic needs were:

• Education/employment
• Alcohol/drug problems
• Emotional/personal
• Attitude/orientation

1. The report noted, under the heading "Mental Health", that the offender had been diagnosed with PTSD, secondary to the incident. He also has depression, poor sleep and is medicated with valium. The offender was under the care of psychiatrist and psychologist, and had had two admissions into Chisholm Ross, Goulburn, due to him becoming "uncontrollable at home".
2. The author was of the opinion that the offender had failed to take responsibility for the commission of the offences, by blaming the cars for being over the fog line. He also failed to acknowledge the seriousness of driving a prime mover under the influence of methamphetamine and cannabis.
3. The report concluded that the offender was unlikely to benefit from a period of supervision by Community Corrections and was assessed as unsuitable for a Community Service Order, due to his ongoing mental health issues.

The offender's evidence

1. The offender tendered the following documents: Exhibit 1 - Report of Dr Ann Stephenson dated 1 April 2016 Exhibit 2 - Report of Ms Margaret Hind dated 20 April 2016 Exhibit 3 - Report of Dr Ray Burn dated 26 April 2016 Exhibit 4 - Documents from Chisholm Ross Centre at Goulburn Base Hospital concerning admissions of the offender on 15 and 23 September 2015 Exhibit 5 - Yass District Hospital note - presentation date Exhibit 6 - Character references and testimonials Exhibit 7 - Copy of card written by the offender to the widow of the deceased

The offender's oral evidence

1. The offender gave evidence that the three offences of fatigued driving in July 2013, occurred as a result of a mistake he made in his driver's log book, which was not properly completed. It was noted that he was illiterate.
2. The night prior to the offence, he had slept from 2.00am to 10.00am and was not tired. He had been employed by his then employer for a period of two years and had been involved in no other accident with any other vehicle. When asked how far away the vehicles were when he first saw them, he said "150 metres". The incident occurred on a gentle left hand bend and there was no difficulty for him to see the two vehicles. He was travelling at 100 kph and immediately looked in his mirrors. He thought at the time that there was a car in lane 2, and that if he moved into that lane, he would have taken that car out.
3. The offender said he applied the brakes but too late. When asked whether he was able to pull up, he said "Not in time to avoid a collision". He had pulled to the right and hoped for the best.
4. With respect of that content of the pre-sentence report under the heading "Attitude to Offending", (outlined above), the offender said that he accepted that it was his driving and lack of control of the vehicle that caused the accident.
5. The offender said that if the widow and family of the deceased were present in court, he would apologise to them and would say that if he could replace the deceased, he would. He said he was sorry for what he had done and had been haunted by it since the accident.
6. The offender gave evidence that his solicitor assisted him to write the card to the widow of the deceased (Ex 7). It had been passed on to the police.
7. The offender said that just prior to the collision he had taken a big swing to the right. He had made a mistake. He thought he was going to miss the vehicle and believed that he may have had a vehicle on his right hand side in lane 2. He partially braked, but did not see any vehicle pass him on his right side. He has miscalculated the time, distance and speed of the vehicle, and the left front side of his vehicle collided with the rear car.
8. The offender had indicated that he wanted to plead guilty from the outset and had suffered from visions of the incident, and night sweats ever since. Whilst he had not driven a semi-trailer since then, he had driven cars. It was unlikely that he would ever drive a truck again and his workers compensation was about to be stopped. He said he would be interested in work in the future "driving little trucks around town". He had no other skills. As to his sentence, the offender said that he was aware that he would go to gaol, and told himself that that would happen, notwithstanding that people had said to him, "No, you'll get off".
9. It was his plan to continue with his anti-depressant treatment if he was sentenced to a custodial sentence.
10. The offender gave evidence that he used methylamphetamine on the previous Saturday night. At the time he believed he could control the use of it, but he did not use it to stay awake for the purpose of his work as a semi-trailer driver. He had not used illicit drugs since the accident.
11. In cross-examination, the offender acknowledged that he was required to be continuously alert when driving on the highways. As to his evidence that he braked partially, he agreed that in his ERISP interview he had told the police that he did not brake and that there was no evidence of braking, namely, that the wheels of the vehicle did not lock up. He now accepted that he did not brake.
12. The offender also accepted that he had clear vision for 200 metres prior to the collision, but he thought he had a vehicle beside him. When asked why he said, "I'm dead sure there was one there because they pulled up after the accident".
13. When asked why he did not brake, the offender said there was another truck behind him.
14. He said he was traumatised at the time of making his ERISP interview, and he thought he did brake, but obviously he did not.
15. The offender acknowledged that he had been inattentive for a significant period of time. He had driven on the Hume Highway six times per week for 20 years, and he had no explanation for the offending. He made a mistake and accepted that he was not paying attention for a significant period of time. He accepted that it was not a momentary lapse or momentary inattention.
16. It was put to the offender that he partially blamed the deceased victim when speaking to the author of the pre-sentence report. He responded by saying "I killed a man and I am guilty".
17. He agreed that he had left the drug rehabilitation program in Wagga Wagga in October 2015 after four days because of the no smoking rule.
18. The content of Dr Stephenson's report (Ex 1) at page 9, concerning the doctor's opinion that his illicit drug use would not cease was put to the offender. He said "It has already ceased".
19. The offender accepted that drivers of heavy vehicles have a serious responsibility to other road users to be extra cautious and accepted that a professional driver has that responsibility.
20. In re-examination, the offender agreed that in respect of the pre‑sentence report, that document had been prepared by the Community Corrections officer asking questions and he answered her questions.

The Crown submissions

1. The Crown submitted that the facts demonstrated amply that the offender failed to maintain a proper lookout and seriously breached his duty to maintain proper control of a heavy vehicle. There was no explanation for the offending other than inattention or distraction, and he had 200 metres of clear vision prior to the vehicles. The inattention was for a significant period of time therefore, and was not momentary inattention.
2. It was submitted that the need for the offender to be continually alert when driving the heavy vehicle contributed to his high moral culpability for the offence.
3. The Crown conceded that the offender was entitled to a 25% utilitarian discount on sentence in respect of his plea of guilty. The objective seriousness of the offending, however, was towards the mid-range, given that he was a professional driver and that there was a "huge risk" involved in his driving to other road users. Nevertheless, it was submitted that it was somewhere below mid-range of objective seriousness.
4. The Crown also relied on the lack of remorse of the offender, reported in the pre‑sentence report, although the offender had shown some remorse in his evidence.
5. The Crown submitted that his prospects of rehabilitation were clearly limited, given his discharge from the residential program at Wagga Wagga.
6. It was submitted that this was not a case to which the guideline judgment in R v Whyte [2002] NSWCCA 343 would apply, but rather, a full time custodial sentence was warranted in accordance with the Court of Criminal Appeal's decision in Barnett v R [2014] NSWCCA 296, which had a number of parallels.

Submissions of the offender

1. Learned Counsel for the offender submitted that the guideline judgment of , R v Whyte, supra, was relevant, but not on point. Rather, the Court of Criminal Appeal's decision in Barnett v R, supra, was of great assistance.
2. It was submitted that the moral culpability of the offending here was not high. There was no evidence of excessive speed, the use of drugs that would impair his driving, or any previous dangerous driving. The offender, rather, was an experienced professional driver who had failed to avoid a collision. It was a mistake, and whilst it was conceded that it did not amount to "momentary inattention", there was established a lack of proper lookout based on the offender's belief that he could get around the vehicles by swerving.
3. The decision in Barnett v R, supra, was important because in that case, there were two deaths caused by the appellant's driving of a heavy vehicle. There was no real explanation for the offending other than the driver had not exercised proper care and an aggregate sentence of 3 years with a non parole period of 18 months had been imposed. In so sentencing, the sentencing judge had indicated sentences of 2 years with a non‑parole period of 12 months in respect of each offence. The circumstances were almost identical and the Court of Criminal Appeal did not interfere with the sentence.
4. In Barnett v R, supra, the sentencing judge was not able to consider an Intensive Corrections Order or a suspended sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 ("C(SP)A"), because the ultimate sentence was greater than 2 years.
5. Here, however, where the moral culpability was not high, the court would take into account the content of the psychiatric and doctor's reports. They demonstrate that the offender had been diagnosed with PTSD, had been suffering from visions of the incident, and could not get into a truck.
6. The content of the pre-sentence report referring to remorse, was clearly at odds with the other evidence, which demonstrated the offender's remorse for his actions. Whilst he was assessed as unsuitable for a Community Service Order, he would therefore not be suitable for an Intensive Corrections Order. Rather, if the court were minded to impose a custodial sentence of 2 years or less, then the court should consider either a suspended sentence or home detention, because of the mental state of the offender. He had on two occasions acted out on suicidal ideation as demonstrated by Chisholm Ross Centre report, and Ex 7 demonstrated ample evidence of his remorse and contrition.
7. It was submitted the offender would suffer considerable hardship, given his mental health problems, serving a custodial sentence. However, if the court saw no alternative to a full time custodial sentence, then an order should be made pursuant to s 44(2) of the C(SP)A for special circumstances based on his mental health problems and the fact that he would find it particularly onerous to serve out his sentence.

Determination

1. Section 3A of the C(SP)A 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. I find the objective seriousness of the offending here, pursuant to s 52A(1)(c) of the Crimes Act, below the mid-range of objective seriousness for such offences, but not very far below it. Objectively, given that the offender was a professional driver, and driving a semi-trailer with a B-double rig, and that he had 200 metres clear vision of the vehicles stopped on the side of the road, the offender failed to respond that that situation for a significant period of time, and when he did respond, it was too late. This was not a case of momentary inattention, as properly conceded by his learned Counsel.
3. I do not accept the submission made by learned Counsel that the moral culpability of the offender here was low. As a professional driver in control of a heavy vehicle, his lack of attention, particularly regarding his failure to brake at any time, and his late attempt to swerve to avoid the vehicles, establish that he was inattentive for a significant period of time. That inattention led to tragic consequences.
4. The report of Dr Ann Stephenson, psychiatrist, dated 1 April 2016 (Ex 1), set out the offender's medical and mental health history. Dr Stephenson diagnosed the offender's PTSD, and also an adjustment disorder with mixed anxiety and depressed mood initially, which had become a major depression.
5. Dr Stephenson recorded the two occasions when the offender underwent psychiatric admission, as a result of suicidal ideation. Dr Stephenson was of the opinion that the offender's depression may be exacerbated by any gaol sentence, and that, in any event, it was improbable that he would learn a great deal from incarceration. It was, however, important that his current anti‑depressant medication be continued. Under the heading "Prognosis", Dr Stephenson opined: "In the longer term, given the environment in which Mr De Groot lives, I would not anticipate that illicit drug use will cease, noting that marijuana is widely used and to a degree acceptable in many areas of society. A degree of resilience is demonstrated in that, despite cognitive impairment and limited literary skills, Mr De Groot maintained occupation employment as a truck driver for 25 years."
6. Ms Margaret Hind, psychologist, in her report dated 20 April 2016 (Ex 2), opined that she believed that a gaol could have a negative impact on the offender. She described him as: "Largely a gentle man with a strong sense of protection towards women and the elderly, he has in the past 12 months become angry and he thought his loved ones were at risk and also angry with himself regarding the man killed in the collision. A gaol environment would possibly exacerbate these feelings and the sense of not being able to care for people he is close to."
7. Dr R J Burn, in a report dated 26 April 2016 (Ex 3), referred to the offender acting out on his suicidal ideation. Dr Burn opined that the offender had shown remorse for the events which led to the death of the man he hit; Dr Burn did not think that he would "gain from being in gaol".
8. The character references and testimonials contained in Ex 6, speak highly of the offender's character as a hard-working man dedicated to his family, a man who is reliable and trustworthy. They also speak of his remorse and his strong and supportive family background. Further, the tragedy has taken a toll on the offender's family.
9. I have had regard to the maximum penalty of 10 years imprisonment and/or a fine of $110,000.00, together with an automatic disqualification from driving of 3 years (12 months minimum) for the offence, as a guidepost in the sentencing process.
10. I have also taken into account the offender's early plea of guilty and the utilitarian discount of 25% on sentence that follows from that. I also take into account that the offender has expressed remorse for his offending, and I reject the pre-sentence report where it sets out his attitude to the offending. I find that the offender is in fact truly remorseful for the offence.
11. I have also had regard to the victim's impact statement tendered by the Crown, and the impact that these offences have had on her physical and emotional state. The statement of Mrs Paterson was a poignant exposition of the extent of the trauma suffered by her and her family. I note that there is no medical evidence against which to assess the victim impact statement, however, it is a matter of common sense that the offence has had a substantial impact on the victim's family. I have therefore taken the victim's impact statement into account, but I make it clear that I have done so not to aggravate the offender's culpability.
12. The guideline judgment of R v Whyte, supra, referred to a typical case of an offence under s 52A with the following characteristics: 1. Young offender. 2. Of good character with no or limited prior convictions. 3. Death or permanent injury to a single person. 4. The victim is a stranger. 5. No or limited injury to the offender. 6. Genuine remorse. 7. A plea of guilty of limited utilitarian value.
13. The Court of Criminal Appeal held 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. The court noted aggravating factors such as: 1. The extent and nature of the injuries inflicted. 2. The number of people put at risk. 3. The degree of speed. 4. The degree of intoxication or 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.
14. Items (iii) to (xi) above are irrelevant to the moral culpability of the offender here. I do, however, take into account as an aggravating factor, the fact that four people were put at risk, namely the four occupants of the parked cars (including the deceased).
15. The Court went on to hold that where the offender's moral culpability is high, a full time custodial head sentence of less than 3 years, in the case of death, would not generally be appropriate.
16. I accept the offender's submission that R v Whyte, supra, is relevant, however, the facts in Barnett v R, supra, show parallels with the current offending. In Barnett, the appellant was charged with two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900. The appellant struck a car which had broken down on the side of the road and had called for roadside assistance. The Crown led evidence that 178 vehicles would have been likely to have passed the collision site, prior to the appellant colliding with them. He was driving a 4.8 tonne table-top truck at a speed of 100 kph, and a witness to the collision gave evidence that he did not see the truck brake or slow down prior to the collision, but saw it swerve suddenly and sharply to the right, just prior to impact. The jury verdict meant that they were satisfied beyond reasonable doubt that the manner of driving by the appellant was dangerous and had not been the source of momentary inattention. Two people were killed as a result of the collision, and therefore there were two charges. Furthermore, the vehicles on the roadside were clearly visible from 250 metres. In those circumstances, the appellant was sentenced to an aggregate sentence of 3 years imprisonment with a non‑parole period of 18 months. Indicative sentences for each offence were 2 years imprisonment with a non-parole period of 1 year.
17. Each case must be decided on its own facts, however, there are parallels with the present situation and that in Barnett v R. The facts, however, are not identical, for example, in Barnett v R, the parked vehicle and tow truck protruded into the highway by a greater distance. This gives rise to the principle of parity in sentencing, together with principles of proportionality and totality set out in Pearce v R (1998) 194 CLR 610 at [45].
18. I have had regard to the offender's previous criminal and traffic history, but not so as to increase the severity of any penalty imposed. I am satisfied with his explanation as to the 2013 offences of fatigued driving, which were derivative upon his illiteracy.
19. Having regard to all of the circumstances here, including the various subjective matters set out above, I am satisfied pursuant to s 5 of the C(SP)A that no alternative other than a full time custodial sentence is appropriate. Having given the matter much consideration, a term of imprisonment of 2 years and 3 months should be imposed. I do, however, find special circumstances pursuant to s 44(2) of the C(SP)A based on the offender's diagnosed PTSD and depressed mood. I therefore intend to adjust the non‑parole period from the statutory ratio.
20. You will therefore be sentenced to a term of imprisonment of 2 years and 3 months, with a non-parole period of 15 months from today.

Orders

1. I make the following orders: 1. You are convicted of the offence pursuant to s 52A(1)(c) of the Crimes Act 1900. 2. I sentence you to a non-parole period of imprisonment of 15 months commencing on 27 May 2016 and expiring on 26 August 2017. 3. I sentence you to a further term of imprisonment of 12 months commencing on 27 August 2017 and expiring on 26 August 2018. 4. Your parole eligibility date will be 26 August 2017. 5. You will be disqualified from driving for 3 years.
2. I recommend you be assessed by Justice Health for administration of your anti‑depressant medication during your sentence.
3. On your discharge on parole, I direct that you accept any direction from Community Corrections in respect of your mental health and drug and alcohol issues.
4. In respect of the s 166 Certificate offences, I order as follows: 1. Sequence 2 - I note the charge is withdrawn and dismissed. 2. Sequence 3 - The charge is dismissed pursuant to s 10A(1) of the C(SP)A.

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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: 30 May 2016