R v Ingram

R v Errington (2005) 157 A Crim R 553 R v Khatter [2000] NSWCCA 32 R v Whyte (2002) 55 NSWLR 252 CASES CITED: Regina v Previtera (1997) 94 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 R v Koosmen (2004) 42 MVR 123 R v Musumeci (unreported 30 October 1997 NSWCCA)

PARTIES: Crown Kane Paul Ingram

COUNSEL: Mr P Cattini (Crown) Ms A Healey (Accused)

1 HIS HONOUR: The offender Kane Paul Ingram appears for sentence following his plea of guilty to a charge that on 29 May 2005 at Figtree in the state of New South Wales he did drive a motor vehicle, namely Holden Commodore sedan XCK-227 in a manner dangerous to another person or persons whereby the vehicle was involved in an impact as a result of which the death of Robert Cutler was occasioned. The offence is contrary to s 52A(1)(c) of the Crimes Act and carries a maximum penalty of ten years imprisonment.

2 The agreed statements of facts is exhibit A and reads as follows: "On 29 May 2005 Mr Robert Cutler was riding his bicycle south on the Princes Highway at Figtree with Mr Franco De Santes. Both cyclists were riding in lane 1 of the highway being the lane closest to the kerb at a speed as they approached O'Donnell Drive estimated by Mr De Santes at 40 to 45 kilometres per hour. At 7.55am the offender Mr Kane Paul Ingram was driving a Holden Commodore sedan number XCQ-227 north on the Princes Highway at Figtree. As he approached the intersection of the Princes Highway and O'Donnell Drive he made a right hand turn into O'Donnell Drive. The turn was made from lane 2 of the northbound lane of the highway being the centre lane into O'Donnell Drive. It is not known if the offender came to a complete stop or slowed to allow oncoming traffic to pass before he made the turn. There is no suggestion that Mr Ingram attempted to negotiate the right hand turn at an inappropriate speed, and in fact the absence of tyre marks on the roadway and other evidence suggests that he was not required to apply his vehicle's brakes harshly to stop the vehicle. A witness Mr Franco Disenzi was travelling by car south on the highway. Mr Disenzi from the kerbside lane to pass the cyclists and continued travelling south in lane 2, being the centre lane. After passing O'Donnell Drive he checked in his rear view mirror and saw the offender's vehicle make the right hand turn behind his vehicle. There is insufficient information to determine the exact path of travel of Mr Ingram's vehicle as he turned into O'Donnell Drive, or to determine the exact point of impact with the cyclist. However, it appears that Mr Ingram may have affected the turn by 'cutting the corner across the unbroken lines' which were almost completely worn in the centre of the highway. This placed the offender's vehicle in the path of Mr Cutler's bicycle and both have collided before moving into and coming to rest in O'Donnell Drive. The vehicle was stopped in the middle of O'Donnell Drive being partly on the correct left hand side and partly on the incorrect right hand side of the entrance of O'Donnell Drive (I will have more to say about the position of this vehicle in due course). There was no centre line in O'Donnell Drive. As a result of the impact Mr Cutler was thrown from his bicycle. He first hit the bonnet of the vehicle then the windscreen and a pillar of the offender's vehicle. Mr Cutler fell off the driver's side of the vehicle and came to rest beside the front offside tyre. As a result of the impact Mr Cutler received fatal head injuries despite wearing his helmet at the time. Mr Ingram called triple 0 from his mobile and requested an ambulance. He was extremely distraught and distressed. Police and ambulance attended the scene and the offender was subjected to a roadside breath test which was positive for the presence of alcohol. The offender was arrested and taken to Wollongong Police Station where he was tested by way of breath analysis. This returned a positive reading of .115 grams of alcohol per 100 millilitres of blood. The deceased was conveyed to Wollongong Hospital where he was pronounced dead. When spoken to by police at the scene of the collision the offender said 'I turned, I didn't see. I couldn't see because of the sun'. He also said that he had drunk no alcohol that day and had just picked up his car from the club or the pub. He in fact had deliberately left his car at a local hotel on the previous evening and caught taxis to another venue and then home. He told the police that he had been drinking the night before between 6 and 11 and he had five schooners of full strength beer and three Jack Daniels and coke. At approximately 7.55am on the following day, 30 May 2005, police returned to the intersection of the Pacific Highway and O'Donnell Drive. The weather conditions being clear with bright sunlight were similar to those on 29 May 2005. Police took video footage of the roadway from the estimated location where Mr Ingram turned specifically indicating the position of the sun at the time. It is apparent that the sun would have been shining in the offender's line of vision as he faced north waiting to turn east. It is also apparent that the area of the roadway where the cyclists were riding would have been in dark shadow adding to his visibility problems.

3 A copy of that video was tendered as part of the sentencing material.

4 Dr Judith Perl provided a report and was of the opinion that at the time of the collision the offender's blood alcohol concentration would have been not less than .125 and not more than .140. She was also of the opinion that at .125 all people would have significant impairment of driving ability including glare resistance (the ability of the eyes to adapt to altered light conditions, for example oncoming headlights or bright sunlight) and impairment of peripheral vision. It is not possible for the crown to determine the actual effect the level of intoxication would have had on Mr Ingram's actions. Exhibit D contains the video footage taken by the police of the intersection on the following day (30 May 2005) at 7.55am. I have viewed that video on numerous occasions and agree with the assertion in the statement of facts that the sun would have been shining in the offender's line of vision as he faced north waiting to make his right hand turn. I also agree that in the video footage was a large dark shadow cast by trees/shrubs onto the roadway in an area just short of the intersection where the cyclist would have been riding and would have passed through.

5 From the facts it is also evident that the offender waited for Mr Disenzi to pass before making his right hand turn. Mr Disenzi was travelling southbound in the number 2 lane having already overtaken the cyclists. By inference, the offender has seen Mr Disenzi's vehicle in lane 2 but has not seen the cyclists in lane 1 (the kerbside lane). At some point in that overtaking manoeuvre by Mr Disenzi of the cyclists, it would seem apparent that at least for some period of time Mr Disenzi's vehicle would have blocked the offender's vision of the cyclists, who at one stage must have been somewhere behind that vehicle.

6 Speed was obviously not a factor so far as the offender's vehicle was concerned, judging by the position in which his vehicle came to rest, as indicated in photo 1 of exhibit C. That same photograph, exhibit C1, also indicates a fairly conventional path for a vehicle turning right from the highway into O'Donnell Drive.

7 The defence tendered a collision reconstruction report by Mr Mark Skullthorpe of Forensic Accident Investigation and Reconstruction Proprietary Limited. That report is exhibit 1. On this question of a conventional or usual path taken by vehicles making this right hand turn Mr Skullthorpe included fifteen photographs taken consecutively of fifteen different vehicles making this turn. Some of those photographs indicated a more severe cutting of the corner than was evident in respect of the offender's vehicle. Mr Skullthorpe opined: "The fact the final portion of the roadway's double unbroken separation lines were considerably faded rendered it more difficult for drivers of northbound vehicles to view and determine a more appropriate path of travel through the intersection."

8 Mr Skullthorpe observed that none of the double centre separation lines or broken lane lines had been repainted for a considerable period of time and had deteriorated through extensive wear and tear (see para 3.4.1). In para 3.4.2 he said: "The final (northern most) 1.6 metre section of the roadway's unbroken centre lines along the northbound approach to the subject intersection had been almost completely worn from the pavement and was almost entirely unrecognisable, particularly for road users preparing to turn right into O'Donnell Drive. Further to this, the final 10 metre section of those lines was also faded and in a deteriorated condition."

9 As I understand it, the significance of those observations is merely that had those unbroken separation lane lines been more visible they may have provided a better guide to northbound vehicles as to the appropriate path in which to make a right hand turn. In other words, it may have had the effect of drawing northbound vehicles to a more northerly position in the intersection before making the turn right. To consider that there may have been a different result for the victim Robert Cutler had the separation lines been more obvious is sheer speculation. We simply cannot know, and I attach little weight to that aspect of the evidence.

10 There is reference in the facts that the offender was subjected to breath analysis back at the police station and returned a positive reading as I have already indicated of .115. I have seen an increasing number of cases come before the courts where persons have had a social night drinking, return home and go to bed. They get up the next morning, they shower and then they go about their daily business thinking they are perfectly okay to drive. That situation seems to be applicable to this offender.

11 The previous evening he made a deliberate decision to leave his car at a local hotel. He eventually caught a taxi home and went to bed. The following morning after retrieving his car this collision occurs at 7.55am. The crown has conceded that in the particular circumstances of this case it is not possible to determine what effect the level of intoxication would have had on the offender's driving leading to this collision. However Dr Perl's opinion as contained in the agreed facts indicated that there would be impairment of driving ability including glare resistance (that is the ability of the eyes to adapt to altered light conditions, for example oncoming headlights or bright sunlight).

12 The crown says that the opinion of Dr Perl regarding the level of alcohol involved would tend to show that the accused's driving ability would have been impaired. That is, by a lessening of his ability to adapt to the glare of the sunlight. This is as high as the crown is able to put this issue. As earlier indicated, the agreed facts contain the following concession: "It is not possible for the crown to determine the actual effect the level of intoxication would have had on Mr Ingram's actions".

Consequently this cannot be viewed as a matter of "substantial weight".

13 Concerning the correct approach to making an assessment of the offender's moral culpability I have gained some assistance from the case of R v Errington 2005 157 ACR 553 where Mason P with whom Grove and Buddin J agreed said at paras 26-27: "The central inquiry with regard to the objective seriousness of the particular offences is identification of the degree of moral culpability involved, this being 'a critical component of the objective circumstances of the offence' (referenced to the case of Whyte at 284).

14 His Honour went on to say: "The jurisprudence in this field recognises 'abandonment of responsibility' as one method of describing a high degree of moral culpability. This does not however endorse a bright line subcategory. There is a wide spectrum of behaviour indicative of differing levels of moral culpability, indeed differing degrees of abandonment. It is not required that cases be assigned to one or other of two pigeon holes marked respectively 'momentary inattention or mis-judgment', and 'abandoned responsibility'. In R v Khatter 2000 NSW CCA 32 Simpson J (dissenting) held at para 31: '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.' Sully J (Curruthers AJ concurring) agreed with these remarks while differing from her Honour in the disposition of the appeal."

15 I am also in agreement with those remarks of Simpson J in the matter of R v Khatter, in particular that "There are shades and gradations of moral culpability in different instances of the offences".

16 There are a number of aggravating factors referred to in the guideline judgment of R v Whyte (2002) 55 NSW LR 252 that relate to moral culpability. The great majority of those are not present in respect of the present offender. For example, speed was not a factor, there was no erratic or aggressive driving, there was no competitive driving or showing off, there is no evidence to suggest that his manner of driving prior to the collision was such that others were exposed to risk, he did not ignore any traffic or warning signs, he was not attempting to escape a police pursuit, there is no evidence to suggest he was suffering any sleep deprivation, there was no question of any failing to stop. Indeed, as already commented, it was the offender who called triple 0 from his mobile and requested the attendance of the ambulance.

17 I have already referred to the issue involving the accused's blood alcohol concentration. In Whyte Spigelman CJ in referring to the above factors said at para 228: "In the above list of aggravating factors, items III to XII are frequently recurring elements which directly impinge on the moral culpability of the offender at the time of the offence. Individually, but more often in some combination, they may indicate that the moral culpability is high. One way of expressing such a conclusion is to ask whether the combination of circumstances are such that it can be said that the offender had abandoned responsibility for his own or her own conduct. That is not the only way of expressing such a conclusion."

18 Of course the list of aggravating factors referred to as indicative of a typical offence was not meant to operate as a checklist but as a guide as commented in Errington; they remain illustrative, not definitive. However, when scrutinising the present facts it could not be said that this offender had abandoned responsibility for his conduct so that his moral culpability was high. There was either a serious lack of proper attention or significant error of judgment, albeit into the strong glare of the sunlight, that resulted in the offender turning right into the path of the oncoming cyclist. It was that dangerous driving that caused the death of Robert Cutler.

19 My assessment is that the offender's moral culpability fell more towards a low level than a medium or high level. However that is not to say that the objective gravity of the offence was in any way insignificant.

20 I have received and considered victim impact statements of Glen Cutler, Kevin Cutler, Kerry Bishop, Gavin Bishop, Darren Bishop, Natalie Bauer and Jason Cutler. Those statements were in fact read to the court by Darren Bishop and Natalie Bauer. It is obvious that the loss of Robert Cutler to his family and friends has been a devastating one, the effects of which will be felt for a long time to come. Your pain has not been lessened by the delay in bringing this matter to finality. I will not repeat again what I said in the course of yesterday's proceedings in respect of that issue.

21 I would also like to comment that when the impact statements were being read it was obvious to me that your sadness and loss was also being felt on the other side of the courtroom, that is by the offender's family and friends. However, having considered all of what has been placed before me, in accordance with Regina v Previtera 1997 94 A Crim R 76 and also R v Bollen 1998 99 A Crim R 510, I have not had regard to those particular effects in assessing the quantum of sentence.

SUBJECTIVE MATTERS 22 I now turn to the subjective matters in respect of the offender. He was twenty-one years of age at the time of the offence. He has now just turned twenty-four years of age. He has no prior criminal history. He has two matters on his traffic record. In 2001 on the charge of negligent driving he was fined $160. In May 2002 for driving with the special concentration of alcohol (.03) he was fined $500 and disqualified for three months.

23 The offender gave evidence before me and confirmed the history provided to Ms Cinzia Gagliardi, clinical and forensic psychologist. Her report dated 19 July 2007 was tendered and is now exhibit 4. Ms Gagliardi stated that during her consultation the offender's thoughts were "predominantly about his sense of helplessness and hopelessness and foreshortened future".

24 She commented that his mood worsened when he spoke about the offence, the death of the victim and the impact on the victim's family.

25 By way of background history, the offender was born and raised in the Wollongong area. He has an older brother and younger sister. His parents separated approximately fifteen years ago. He lived with his father when he was fifteen years old then moved back with his mother until he finally moved out on his own. He eventually bought the home his mother was living in when she could no longer afford to pay herself and said he felt an obligation to take care of is mother.

26 He left Warilla High School half way through year 10 to start a pre-apprenticeship. After beginning that apprenticeship in mechanical engineering he switched to mechanics and completed this in the prescribed time. Post apprenticeship he began working in the mines where he continues to work today. He is highly regarded in the workplace as is evidenced by the testimonials, now exhibit 5. He suffered a serious workplace injury in August 2006 and has recently received a clearance to return to the mines.

27 When giving evidence the offender confirmed that on Saturday afternoon 28 May 2005 he had been with his then girlfriend, Ms Stevens, before meeting up with a friend at the Mount Kembla Hotel. That hotel was only a few minutes drive from his home and he arrived there about 6pm. He remained there playing pool and consuming beers with a group of friends. The group eventually decided to go to Wollongong city. He deliberately left his car at the hotel and caught a taxi into the city area. He later met up with Ms Stevens and they caught a taxi to his home arriving at about midnight.

28 The following morning Ms Stevens' mother came to collect her as she had to play in a Sunday morning soccer competition. A short while after leaving Ms Stevens returned with her mother and suggested that they give the offender a lift so he could collect his car from the hotel. That was something he had not planned, but he accepted the offer.

29 He was dropped off at the hotel, got into his car and drove the usual and shortest way home. He travelled down Cordeaux Road and onto the Princes Highway, indicating to turn right into O'Donnell Drive. He saw an oncoming car and slowed down to allow it to pass; he confirmed the sun was very strong and glary and he was turning into it. He said he just did not see the cyclist.

30 On p 3 of her report Ms Gagliardi stated as follows: "Mr Ingram stated that since the offence on 29 May 2005 his life has changed dramatically and he no longer feels he resembles the man he used to be. He reported that during the first six months post offence he abused alcohol daily (except for the first month) and would drink to intoxication on each occasion. He said he began using illicit drugs which he had never taken before, reporting this as a means of coping with the ongoing trauma of what had occurred. Mr Ingram stated that during these first six months he was unable to sleep (without first becoming intoxicated), could not eat, experienced flashbacks about the event, nightmares and intrusive thought patterns. He said he experienced daily thoughts of suicide, planned to kill himself by going deep into the mines and throwing himself off the edge. He said he had even planned what he would write in the suicide note and where he would leave it."

31 Ms Gagliardi continued: "Mr Ingram said he continues to experience daily thoughts about the offence and the ongoing legal situation. He said he experiences flashbacks (he sees the victim crash onto his windscreen then sees the victim on the ground outside his car, he believes it is happening again and feels the fear and sense of helplessness he experienced on that day) and regular nightmares."

32 Ms Gagliardi further reported: "Mr Ingram stated that he is unable to tolerate any scenes on television about motor vehicle accidents and any graphic images depicting injury or death. He said he avoids talking about what happened and any other reminders about the event. Mr Ingram stated that whenever he comes close to a hearing date his symptoms worsen and he is significantly traumatised whenever he sees the victim's family members with feelings of intense remorse and sorrow. Mr Ingram has said he has felt depressed on a daily basis since the offence and during the entire legal battle. He says he feels a great sense of hopelessness and sees a foreshortened future. He reported continual worry about his family, his partner and his unborn child."

33 On p 5 of Ms Gagliardi's report this appears: "When asked how he felt immediately after he was breath tested, he felt shocked and 'gutted'. He said 'I knew it was all over. I knew he', that is the victim 'was going to die and I knew it was a mess'. He said he could not understand how he was still over the limit, he said he had felt so well and had a good night's sleep. Mr Ingram reported that he has felt ongoing remorse and a deep sense of sadness for the victim's family. He reported he understood the victim's anger towards him since he too would have been angry if he believed his loved one had been killed by a drunk driver. He said that initial newspaper reports had depicted him as a drunk driver and he felt helpless in his attempts to present a more accurate picture."

34 Under Ms Gagliardi's heading of "Summary and Opinion" this appears: "At assessment Mr Ingram presents with significantly impaired psychological functioning as a result of his current offence. He depicts a marked change in nearly all areas of his functioning and a persistent belief that he will never experience any peace of happiness again. Mr Ingram displays the symptoms of post traumatic stress disorder which has not been properly assessed or treated to date and has been exacerbated by the ongoing legal process. Mr Ingram presents as a young man with a great sense of personal responsibility and obligation. He has always been a committed hard worker, has acted to ensure the wellbeing of his mother and sister and his current partner and unborn child. He is characterised by an underlying desire to 'make things right', and part of his ongoing trauma associated with the current offence is his perceived inability to do so for the victim's family. This has in turn caused him considerable distress."

35 A pre-sentence report was prepared by Ms Jan Duncan, Probation and Parole officer, that is dated 10 July 2007, exhibit 6. Under her heading of "Factors Related to Offending" she states: "Mr Ingram reported shortly after the offence. He was referred for psychological support via his workplace supervisor who observed that he was experiencing difficulties. He attended regular counselling for several months before the treating psychologist left her position and Mr Ingram decided to cease intervention. He was also referred for psychiatric treatment, prescribed medication December 2005. Mr Ingram stated he ceased medication after a short period of time as he felt that the side effects 'drowsiness and lethargy' were counterproductive. During interview with the undersigned on 21 June 2007 it was apparent that Mr Ingram was experiencing psychological distress. He reported symptoms consistent with post traumatic stress disorder and/or depression including flashbacks, sleeplessness, guilt and appetite disturbances which had been consistent since the offence."

36 Under Ms Duncan's heading of "Attitude to the Offence" she stated that: "Mr Ingram has accepted responsibility for his actions and demonstrates sincere remorse for the resulting death of the victim.

The offender commenced a six week traffic offender's program several months after the offence. He attended three of these six sessions offered, however he found that the graphic images and the descriptions of the collisions/victims which were part of the program content too distressing and was unable to complete the remainder of the sessions."

37 In "Summary" Ms Duncan stated: "Mr Ingram presented as a man who regrets the offence which led to his appearance before the court. He is acutely aware of the result of his actions upon the victim and the victim's loved ones and has himself struggled with mental health issues since the offence. He indicated that regardless of the court's decision he will live with the ramifications of his actions for the rest of his life."

38 Exhibit 3 is a letter directed to the Cutler family. Ms Healey of counsel was not the offender's legal representative during the initial stages. However, Ms Healey submitted that the offender had written a letter of apology to the Cutler family soon after the offence. However, the offender received legal advice that it should be withheld and it was only provided in the weeks prior to the last court appearance, that is before this week, in the weeks leading up to 21 May 2007.

39 I accept that submission from Ms Healey that the original letter was written at the instigation of the offender himself and that it was written shortly after the offence.

40 I do not have the slightest doubt that the offender's remorse is genuine and has always been. There is material in the psychologist's report and also in the probation officer's report that indicates a strong element of self punishment. In other words, a self inflicted sense of shame and guilt. This is a relevant factor to take into account. However, in doing so I have had regard to the words of caution expressed in R v Koosmen 2004 42 MVR 123 by Smart AJ at para 32 when he said: "Genuine remorse and self punishment do not compensate for or balance out gross moral culpability."

41 I have also reminded myself of some of the considerations Hunt CJ at CL referred to in R v Musumeci (unreported 30 October 97 NSW CCA at para 228) as applying to sentencing for an offence of dangerous driving. Firstly he stated that: "Such is the need for public deterrence in this type of case the youth of any offender is given less weight as a subjective matter than in other types of cases, and secondly, when dealing with youthful offenders of good character the sentence must be seen to have a reasonable proportionality to the objective circumstances of the crime and persuasive subjective circumstances must not lead to inadequate weight being given to those objective circumstances."

PLEA 42 The offender is entitled to have his plea taken into account in mitigation of penalty. This is done on two bases, to reflect the utilitarian benefit to the criminal justice system, and to reflect contrition. The matter was first listed for trial on 13 April 2006. A voir dire was conducted in respect of several preliminary issues. After His Honour Goldring J gave judgment in respect of those issues the matter was given a new trial date. The delay that occurred thereafter was not the fault of the offender or the prosecution. I have taken that delay into account.

43 On 21 May 2007 in the Wollongong District Court the offender pleaded guilty. Consequently this is not a plea at the earliest opportunity. In some cases of a similar nature, depending on the circumstances it might be legitimately argued that the guilty plea is of limited utilitarian value (see guideline judgment of Whyte). In my view that could not be said in respect of this plea. One only needs to reflect on the facts to appreciate that there could have been an arguable issue as regards dangerous driving and negligence. In those circumstances there remains a significant utilitarian benefit and I propose to reflect that benefit by a discount of about twenty-five per cent.

44 I have taken into account the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. I have also had regard to s 5 of that act, and having considered all possible alternatives I am satisfied that given the objective seriousness of the offence no penalty other than imprisonment is appropriate.

45 I find special circumstances being that at age twenty-four this will be his first time serving a custodial sentence and my assessment of his good prospects of rehabilitation. I regard this as sufficient reason for me to vary the statutory ratio. Ms Healey, I will be ordering the sentence be served by way of periodic detention.

46 Mr Ingram would you please stand. You are convicted of the offence and I sentence you to a non-parole period of fifteen months. I sentence you to an additional term of fifteen months. I order that this sentence be served by way of periodic detention. The sentence is to commence from 17 August 2007 and I order that you be released to parole on 16 November 2008. You will have to report to the Unanderra Periodic Detention Centre at 8.30 on Saturday 18 August 2007. You will be provided with information that on all subsequent weekends you will be required to report on Friday afternoons.

47 There are some administrative matters that need to be taken care of, that will be done in due course this morning. You should understand that if you do not comply in all respects with this order of periodic detention the authorities have the ability to convert this into a sentence of full time imprisonment. If you would just take a seat there for the moment.

48 In relation to the two matters on the s 166 certificate, I order that both those matters are withdrawn and dismissed.

50 The disqualification is confirmed and is to date from the date of the offence. Yes, thank you.

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