R v Kalwig [2009] VSC 373

Supreme Court of Victoria|2009-09-01|Before: WEINBERG JA

Convicted on three counts of dangerous driving causing death - Found to have driven semi-trailer in Burnley tunnel at a speed or in a manner dangerous to the public - Semi-trailer swerved to avoid collision with vehicle stopped in left lane - Failed to pay proper attention to road ahead - Total effective sentence of five years with non-parole period of two years and nine months

1 David Lawrence Kalwig, after a trial which lasted some 11 days, you were acquitted by the jury of three counts of culpable driving causing death, but found guilty instead of three counts of the lesser and alternative offence of dangerous driving causing death. The maximum penalty for each offence was, at the time of its commission, five years' imprisonment. In March 2008, the maximum penalty was raised to ten years' imprisonment. However, you are, of course, to be sentenced on the basis of the five-year maximum.

2 The circumstances surrounding the commission of these offences have been widely publicised, and were brought out clearly at the trial. At about 9:54 am on 23 March 2007, you were driving a 1986 Louisville prime mover towing a refrigerated trailer, bearing a McCain's logo, in an easterly direction through the Burnley tunnel. Your vehicle became involved in a series of collisions, which resulted in the deaths of three men, each the sole occupant of his own vehicle. This caused a major fire within the tunnel, which led to about 300 people having to be evacuated. The tunnel was then closed for three days.

3 The three men whose deaths you caused were Geoffrey Kennard, Darren Sporn, and Damian McDonald. None of them was in any way to blame for what occurred. Their deaths were brought about solely because of the manner in which you drove. In a setting that clearly required you to exercise caution, you failed to keep a proper lookout and drove at a speed that was, in all the circumstances, excessive.

4 You were at the time aged 41. You had, by March 2007, worked as a truck driver for some 17 years although, most of that time, you had been driving smaller vehicles rather than large semi-trailers. You were employed by a company known as Sub Zero Transport and Storage, which transported refrigerated goods. You had been driving the McCain's truck since November 2006, a period of about five months.

5 On the morning of the collision, you began work at about 7 am. You were rostered to drive the McCain's truck and do a number of pick-ups and deliveries. You began work at the Sub Zero depot in Brooklyn in Melbourne's western suburbs. At the start of your shift, you inspected the prime mover, checking the tyres and air brakes. You carried out your duties picking up and delivering goods and returned to the depot at about 9 am. You then unloaded some goods, and left the depot to make further deliveries, and to pick up other goods. Your vehicle was not fully loaded when you left the depot and was well within the legal maximum weight at the time of the incident.

6 You drove out along McDonald Road, Brooklyn, turned right into Millers Road, and then headed up towards the West Gate Bridge. You then turned onto the Princes Highway heading towards the city. You drove over the West Gate Bridge and continued on and into the Burnley tunnel.

7 Unbeknown to you, a 2006 Sterling truck, towing a semi-trailer, had sustained a blow-out of one of its tyres and, due to the absence of any emergency stopping lanes in the tunnel, had pulled over to the left-hand lane. That occurred about two minutes or so before you arrived at the scene. The driver of that vehicle got out of his truck and inspected his tyres. He found that the outer tyre on the middle axle of the trailer had punctured. He then returned to the cabin with the intention of calling his depot to arrange for assistance. He climbed back into his driver's seat preparing to make a telephone call. At that stage, the Sterling truck was stationary in the left lane with its headlights on and hazard lights operating. It was blocking the entire lane, forcing traffic to diverge right and move around it.

8 There was evidence at the trial that after the Sterling truck had stopped, some 108 vehicles, including 23 trucks, two Double B semi-trailers and 83 cars, were able to pass by it safely. In all, some 10 vehicles, including a marked police car, managed safely to manoeuvre from the left lane around that truck.

9 Moments later, a 2003 Mack prime mover, which was towing a floor trailer and which may, for convenience, be described as the 'Twigg truck', entered the tunnel. The driver moved to the left lane. As he did so, he saw the Sterling truck, he claimed, an estimated 700 or so metres in front of him. He calculated that he was travelling at about 80 kph, or just below that, when he saw the emergency lights flashing on the Sterling truck, and realised that it had stopped.

10 He completed his move into the left lane and began to slow down so that he could stop well short of the truck ahead if he needed to. He then travelled another few hundred metres, confirming in his mind that the Sterling truck had indeed stopped. He applied the brakes and changed down through the gears. He got down to a speed of about five kph and was some distance west of the Sterling truck, waiting for a gap in the centre lane to appear, so that he could change lanes and safely move around the stationary vehicle.

11 You entered the tunnel some time after the Twigg truck. You were travelling in the left-hand lane, it seems at between 65 and 70 kph. That was below the designated speed limit of 80 kph, a fact upon which your counsel placed great reliance in your defence to these charges. Other vehicles slowed significantly as they became aware of the Sterling truck. For whatever reason, you did not.

12 You continued along in the left lane, reducing your speed only marginally. By the time you appreciated the danger posed by the Twigg truck immediately in front of you, it was too late. You swerved suddenly into the centre lane in order to avoid colliding with that truck. In changing lanes, you sideswiped a Ford Falcon travelling in the centre lane. The driver of that vehicle had her two-year-old son as a passenger in the rear. In doing what you did, you forced her vehicle into the right-hand lane.

13 Your truck then continued in the centre lane with your trailer sideswiping an Isuzu prime mover and trailer, which was described in the trial as the 'K&S truck'. The driver of that vehicle had been travelling in the right-hand lane.

14 You ricocheted off the K&S truck and back into the centre lane. There your vehicle collided with the rear of the Mazda being driven by Mr McDonald. That forced his car to collide with the rear of a silver Subaru station wagon. As a result of that impact, the station wagon diverged into the right lane, colliding with the fuel tank of the K&S truck, and then rotated in a clockwise direction across the path of that vehicle.

15 As a result of having been struck by your vehicle, Mr McDonald's Mazda was forced into the left-hand lane. The Mazda, together with your truck, then collided with the Toyota Townace being driven by Mr Kennard, and with the Holden Rodeo being driven by Mr Sporn. The Holden Rodeo was forced up and along the wall of the tunnel and effectively crushed between your truck and that wall. The Mazda also ultimately ended up between the passenger side of your trailer and the tunnel wall.

16 Once in the left-hand lane, your truck collided with the rear of Mr Kennard's vehicle. The impact was so severe that it crushed the Toyota Townace between your truck and the Sterling truck. As a result of these various collisions, fire engulfed the Mazda, the Townace, and the Holden Rodeo, as well as the rear of the Sterling truck.

17 You were spoken to by the police at the scene following the accident. Your blood was tested, and it was not suggested that you were affected by alcohol or drugs at the time. You were also subsequently interviewed by the police and by representatives of your employer's insurer. All of those interviews were recorded, and evidence was given at the trial of what you said in them.

18 Two police experts in accident reconstruction gave evidence against you. They based their opinions largely upon footage of your movements in the tunnel, as reproduced from CityLink cameras. In their opinion, you were still travelling, at the moment you suddenly swerved from the left lane to the centre lane, at about 65 to 68 kph. Their view was that much of the adjacent traffic in the centre lane was then travelling at about 30 to 40 kph.

19 There was no suggestion in the evidence that your vehicle was in anything other than reasonable mechanical condition. There was no fault revealed that would have caused, or contributed to, the collision. The brakes were operative and functioning at the time of the crash. You were, as I have indicated, a thoroughly experienced driver.

20 The case against you was that by the manner in which you drove, and in consequence of the various collisions which you thereby caused, you were guilty of dangerous driving resulting in three deaths. It was said that you were negligent in the management and control of your vehicle. It was further said that you failed to keep a proper lookout while driving in the tunnel, an inherently dangerous place. As a result, you failed to notice that the Twigg truck had either come to a complete halt, or had almost done so, and did not realise that you needed to slow down and keep a safe distance back from it in order to avoid hazard to others. Put simply, it was said that you drove negligently, and at an excessive speed, having regard to the circumstances as they then existed.

21 The jury were given clear instructions as to the differences between culpable driving, dangerous driving, and ordinary civil negligence. As regards dangerous driving causing death, they were told that they could only convict if satisfied that the manner in which you drove involved a serious breach of the proper management and control of your vehicle. They were told, in effect, that that breach had to be so serious as to be potentially dangerous to others, and that your driving had to exceed the risks ordinarily associated with being on a public road.

22 The jury were asked to consider whether an ordinary person, in the same circumstances as you found yourself on the morning in question, would have realised that the manner of your driving gave rise to a risk of death or serious injury to other road users. They were also told that they could not convict you unless satisfied that your driving merited criminal punishment. Finally, they were told that dangerous driving causing death involves conduct more blameworthy than a mere lack of reasonable care such as would render a driver liable to damages in tort. Importantly, for present purposes, it was stressed that momentary inattention, such as might be sufficient for a finding of civil negligence, would not be sufficient for a finding of guilt on the charge of dangerous driving causing death.

23 By their verdict, the jury found that you did not drive with proper care and attention in all the circumstances. They must have found that you had more than enough time to see that the Twigg truck had either come to a complete stop, or had virtually done so. You had a clear and unimpeded view of that truck and ample time to slow your vehicle and bring it to a halt. Had you been attending properly to your driving, and not been somehow distracted, you would easily have been able to avoid the need to swerve sharply into the centre lane.

24 The jury's verdict was, in my view, highly likely to have been based upon the camera footage, which showed quite clearly that, from the time you could have seen the Twigg truck in the left lane ahead of you, you had somewhere between five and eight seconds within which to react. You could easily have applied your brakes far sooner than you did, and come to a safe stop behind that vehicle.

25 Your counsel submitted on the plea that a five to eight second lapse in concentration was a very short period of negligence on your part, and that made this a less serious form of this offence than many others. Indeed, he described your inattention as 'momentary'. I reject that contention, as must the jury also have done. They were told in clear terms that momentary inattention would not suffice for criminal liability.

26 Anyone driving a large semi-trailer at about 65 kph through a confined space, such as the Burnley tunnel, which has no emergency stopping lane, must be aware of the potential hazard to other vehicles if they fail to pay proper attention to the road ahead. It is obvious that there is a need, in such circumstances, to keep a careful lookout for vehicles that might have stopped, or be slowing down, in the lane ahead. To drive a vehicle, such as yours, at such a speed in such a place without paying any attention to what was happening in front of you for anything up to eight seconds is obviously foolhardy and extremely dangerous.

27 In your favour, you have no prior convictions. Indeed, you are a man of positively good character, as the evidence called on the plea clearly attests. You have done much, over your life, to help others and you are a good family man. However, as this case illustrates, good men sometimes can do terrible things.

28 Tragically, your failure to act responsibly when you drove through the tunnel has led to the pointless and entirely avoidable death of three men, all of whom were, by all account, good men too. They died because of your negligence and your complete stupidity. I accept that you feel sorrow and remorse for their deaths. However, whether you, even now, appreciate the true extent to which you were to blame for what happened to these men is less certain.

29 To have to sentence a man like you to a substantial term of imprisonment is not easy. Nonetheless, I would be failing in my duty to the community and, in particular, to all road users, if I did not ensure that you were adequately punished for what you did.

30 I do not think that specific deterrence looms large as a sentencing factor in your case. You had, after all, a good driving record over many years and this incident was very much out of character.

31 However, the authorities require that I have regard to the need to deter others from driving in the manner in which you did. Dangerous driving causing death is obviously a serious offence. Although there are some aspects of your offending that tend to reduce your culpability, there are also aggravating circumstances. In particular, the gravity of your conduct was aggravated by the fact that, at least potentially, you exposed many other drivers in the tunnel on that morning to the risk of death or serious injury.

32 In short, it must be understood that even someone such as yourself, with a blameless history, and a good driving record, will face imprisonment if he or she fails to pay proper attention when driving, and thereby causes death, or serious injury, to others.

33 David Lawrence Kalwig, you are sentenced by this Court as follows. On count 1, causing the death of Geoffrey Kennard by dangerous driving, you will be imprisoned for a term of two years and six months. On count 2, causing the death of Darren Sporn by dangerous driving, you will be imprisoned for a term of two years and six months. On count 3, causing the death of Damian McDonald by dangerous driving, you will be imprisoned for a term of two years and six months. I order that 15 months of the term on count 2, and 15 months of the term on count 3, be served cumulatively upon each other and upon count 1. That makes a total effective sentence of five years' imprisonment.

34 Having regard to your prospects of rehabilitation, which I regard as good, and the other matters raised on your behalf on the plea, I fix a non-parole period of two years and nine months.

35 I should emphasise that the sentences imposed upon you are based upon a maximum penalty of five years' imprisonment available on each count. Plainly, any offence such as yours committed after March 2008, when the maximum penalty was doubled, would be likely to receive a significantly heavier sentence.

36 Under s 89 of the Sentencing Act 1991, your licence will be cancelled, and you will be disqualified from obtaining a further licence for a total period of 18 months from the date on which you are released from prison. I declare that the period of 35 days, including this day, is to be reckoned as time already served under the sentence I have imposed. I order that there be noted in the records of the Court the fact that such a declaration was made and its details.

I certify that this and the 108 preceding pages are a true copy of the reasons for Judgment of Weinberg J of the Supreme Court of Victoria delivered on 1 September 2009.

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Judgment (39 paragraphs)

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