R v Lindrea

[4]

FACTS

At tab 1 of Exhibit 1 is a 22-paragraph statement of agreed facts with photographs. I summarise those facts and hope that I do justice to them.
The offender is Scott Lindrea born in December 1986. The deceased is Vincent James Gooden, who was 30 years old at the time of the collision. The offender was driving a Kenworth prime mover heavy vehicle towing two trailers at the time of the collision. The deceased was driving an articulated semi-trailer prime mover. The incident occurred on Federation Way, Daysdale. Federation Way is a rural arterial roadway with one lane of traffic in each direction, divided by a painted, single broken line. The road is sealed bitumen with rural properties consisting of mostly canola farms on the eastern and western sides of the road.
The collision occurred around 1 kilometre south of the Hanrahans Road intersection. It occurred on a slight left-hand bend if travelling southbound or on a slight right-hand turn if travelling northbound. The offender's truck was carrying approximately 40 tonnes of grain. The deceased's truck was carrying approximately 20 tonnes of fertiliser. Shortly before 1.11pm on 11 August 2022 the offender was driving in a southbound direction from Urana to Pasto, Daysdale. The deceased was driving in a northbound direction from Corowa. The speed limit was 100 kilometres an hour. There was a yellow advisory speed sign saying the recommended limit is 75 kilometres around the bend. The sign is clearly visible. The sign is posted 200 metres before the corner.
The offender was driving above the advised speed limit of 75 kilometres an hour but within the limit of 100 kilometres an hour. As the offender was driving into the left-hand corner, he was unable to keep his truck on the left side of the road and veered onto the incorrect side of the road where he collided with the deceased's truck. The collision occurred in the northbound lane and due to the speed of the offender's vehicle, the offender's truck travelled along the full length of the deceased's truck. This caused the deceased's truck to go off the road and roll onto its side. The deceased died immediately due to fatal injuries.
The offender suffered critical head injuries, internal bleeding due to a severe liver laceration and was taken to hospital in Melbourne. The offender's truck was examined and of the parts that could be examined, there were no mechanical faults or defects found. Just prior to the accident the offender had a phone call at 1.04pm which lasted 139 seconds. He also had a second phone call at 1.06pm which lasted for 91 seconds. The offender was on this call heading into the collision. The offender was using air-buds and speaking to a colleague, Brendan Crabb. The call ended with the offender saying, "Fuck" and the call going dead. Triple-0 was called at 1.11pm.
Tyre marks show that the offender's truck had veered over the centre dotted line as he failed to navigate the corner. There was a gouge mark on the road from the offender's vehicle that indicated the area of impact. The gouge mark was 1.5 metres long and located 2.3 metres west of the centre line in the northbound lane, being the lane the deceased was correctly driving in.
Samuel Shanks had been driving his truck with the offender from Urana towards Daysdale. They drove the speed limit and Mr Shanks observed, "As we got closer to Daysdale… The road was wetter than, er, than what we'd just been in". Mr Shanks was still driving behind the offender as they exited the 80-kilometre zone coming out of Daysdale. He observed the offender: "Built up a bit more steam than I did. Like, I'm getting out of the 80‑zone. I wasn't in a hurry. And, yeah, approximately maybe a quarter of a kilometre, if that, in front he got and I could see his truck, the back of his truck and there's a bend up front coming up to all in my vision a big puff of dust, what looked like dust to me. As I got closer, I could see that the white…with the cab over, I think it was a 200-series, was on its side."
As he was following the offender, before the collision, he did not notice the offender's brake lights come on at any point. Mr Shanks told police, "We both were doing the speed… we would've been doing 80 kilometres. He just might've picked up a bit more, a few gears more than I did. I wasn't in a hurry but whatever. I'm not saying he was either".
The offender had been employed for eight years as a truck driver. He started his journey at Lockhart, New South Wales and was travelling to Geelong. The offender's national driver work diary recorded him having commenced his shift at Boree Creek around noon on 11 August 2023. He had driven until just before 11pm the night before, having driven 9.5 hours that day with 14.5 hours of rest. Due to the wet road conditions, the offender driving at a speed where he was unable to safely navigate the bend in the road, the heavy load he was carrying and being on the telephone leading to the collision, the offender was driving in a dangerous manner that caused the death of the deceased, Mr Gooden.

[5]

OBJECTIVE SERIOUSNESS

R v Whyte (2002) 55 NSWLR 252 is a guideline judgment. The guideline is a "check" or, "indication". A guideline is "not a tramline" and should not be used to impermissibly confine the exercise of sentencing discretion. It is also erroneous to treat the Whyte guideline as a "starting point" rather than a reference point.
The Court identified a number of characteristics common to offences of driving in a dangerous manner at [204], they being: (i) Young offender. (ii) A person 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.
Mr Lindrea is not a young man. He was 35 at the time of the collision. He was a professional driver. He does not have a NSW criminal or traffic history. He has a spent conviction in Victoria. He was convicted on 11 November 2010 for exceeding prescribed concentration of alcohol. The offender's prior driving record is to be ignored when assessing the objective seriousness of the offence: Regina v McNaughton (2006) 66 NSWLR 556 at [25]. His driving caused the death of one person.
Mr Lindrea sustained a traumatic brain injury. He had traumatic laparotomy, liver laceration, right rib fractures, right arm trauma, fractured nasal bones, fractured scapula and clavicle. He has expressed genuine contrition and remorse for his actions. The plea attracts a 25% discount, not the 10% contemplated by the Court in the guideline judgment. At [216] to [217] the Court set out a list of aggravating factors namely: (i) Extent and nature of the injuries inflicted. (ii) The number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or substance abuse. (v) Erratic or aggressive driving. (vi) Competitive driving or showing off. (vii) Length of journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. (x) Degree of sleep deprivation. (xi) Failing to stop.
The driving was below the speed limit. The speed advisory sign was no more than advisory. It was not mandatory. There is no evidence of intoxication or substance abuse. There was no erratic, competitive or aggressive driving. No others other than the deceased were exposed to risk. There was no sleep deprivation on the part of Mr Lindrea.
References to "moral culpability" in the guideline judgment are to be understood as references to the objective criminality of the offence: Regina v Eaton [2023] NSWCCA 125 at [56]. The Crown submits the offending in this matter is at the mid-range of objective seriousness for dangerous driving. The occasioning death offences and the following factors are relevant to that assessment: 1. Mobile phone use: the offender was on the telephone leading into the collision with the deceased. He had earphones in and was talking to another truck driver. The offender was likely distracted by this telephone use which the Crown submits led to the offender not realising he was travelling at an unsafe speed for the weight of the load his truck was carrying and the conditions of the road. The offender would have been able to see the deceased's truck coming into the corner but was, in the Crown submission, likely distracted and could not prevent his truck veering onto the incorrect side of the road where it collided with the deceased. 2. Road conditions and vision: the road was wet, and the offender would have had a clear, unobstructed view of the road beyond the bend and clearly be able to see the deceased's truck heading towards him in the correct northbound lane. 3. Speed: the offender was driving at speed that was not over the speed limit of 100 kilometres an hour, however, was above the speed advisory limit of 75 kilometres an hour for the bend. He was driving too fast for him to safely navigate the bend in the road. The speed he was driving at was too fast for the wet road conditions, too fast for the heavy weight of his truck and was above the advised speed limit for safely navigating that bend of the road. 4. Offender's driving experience: the offender is an experienced truck driver that had been employed for eight years as a truck driver. He was aware of the heavy weight of his truck and knew that he was towing two trailers carrying a total of 40 tonnes of grain in addition to the weight of the trailers and the rest of the truck. 5. Injury to other road users: the collision caused the death of the deceased. 6. Length of journey: the offender had been on the phone at 1.04pm and again at 1.06pm which is the phone call the offender was on leading into the collision. It is difficult to characterise the length of the journey to which other road users were exposed to risk, but it was, in the Crown's submission, at least between 1.04pm and the collision at 1.11pm. This was also on a highway that often has large trucks and vehicles carrying heavy loads that was wet at the time and has bends where care needs to be taken. The offender was intending on a lengthy journey and had been travelling from at least Urana which was 30 minutes from Daysdale. The Crown further submits: "The offending also could not be characterised as a case of momentary inattention or misjudgement…the collision was avoidable but for the offender's distracted and dangerous driving. Had the offender paid attention to the road he would have seen the deceased's truck and could have slowed to a speed to safely navigate the corner and avoid veering onto the incorrect side of the road where a collision was unavoidable."
Mr Thorpe submits that the offending behaviour, while serious, is below the midline of objective seriousness. He submits there was no prolonged course of dangerous driving. There was no prolonged abandonment of responsibility. He says the conduct should be characterised as momentary inattention. Mr Thorpe, in his written submissions, reviewed the tyre and gouge marks. He submits: "Assuming the distance travelled from when the vehicle first veered over the centre line until the point of collision was approximately 30.7 metres at 80 kilometres per hour. It would've taken approximately 1.382 seconds…90 kilometres an hour, it would take 1.228 seconds."
He submits that the incident was caused by momentary inattention albeit with tragic results. He further submits the use of a mobile phone with Air Pods was not illegal and the advisory sign was just that.

[16]

SENTENCE

The legislature has always placed a premium upon human life and accordingly, the taking of a human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness. The real substance of the offence is not just the dangerous driving. It is the dangerous driving with the association of taking a human life. General deterrence is a major consideration, and a Court must be wary in showing leniency for good character. General deterrence is important because of the prevalence of driving and the terrible consequences that can flow from the failure by a driver in the management of a motor vehicle.
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. I have found that this is a case of momentary inattention. The Crown submits the s 5 threshold has been crossed and an immediate sentence of imprisonment should be imposed.
Mr Thorpe conceded that the s 5 threshold has been crossed but that the sentence of imprisonment should be served by way of an intensive correction order. Of offenders dealt with from September 2018 to June 2023 for this offence, 34% of offenders received intensive correction orders.
In The Queen v Balla [2021] NSWCCA 325, a Crown appeal on the grounds of manifest inadequacy in respect of the imposition of an ICO for a for an offence of dangerous driving causing death was dismissed. Mr Balla had turned across a large intersection as lights turned red and collided with an oncoming motorcycle, killing the rider. The tragic miscalculation and inattention were over mere seconds. The sentencing Judge found it was not a true example of momentary inattention. The respondent was of good character and expressed sincere and profound remorse. The Court held that it was open for the sentencing Judge to impose an intensive correction order.
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 an offence may be committed where the offender has had no more than a momentary or causal lapse of attention, there must always be room for a non-custodial sentence.
Federation Way is a rural arterial roadway with one lane of traffic in each direction divided by a painted single broken line. The road is sealed bitumen with rural properties consisting of mostly canola farms on the eastern and western sides of the road. In Thai v Regina [2009] NSWCCA 314, McClelland CJ at CL at [4] said that "Momentary inattention on an isolated country road may give rise to lesser moral culpability than momentary inattention when driving on a freeway or in an urban environment where traffic is dense".
Mr Lindrea has a considerable bank of good character to rely upon. He is sincerely and profoundly remorseful.
Three steps must be undertaken prior to a sentence of imprisonment being imposed under the Act: Stanley v Director of Public Prosecutions [2023] HCA 3: 1. Having considered all possible alternatives that no penalty other than imprisonment is appropriate; 2. Determination of the appropriate term of the sentence of imprisonment; and 3. Where the issue arises, consideration whether or not to make an ICO.
While aspects of community safety underpin some of the general purposes of sentencing and have already been considered in deciding whether to impose a sentence of imprisonment, a further consideration of community safety is required but in a different manner when considering whether to make an ICO. See ss 3, 7 and 66 of the Crimes (Sentencing Procedure) Act.
Section 66(1) requires the Court to treat community safety as the paramount consideration. In context, community safety principally concerns possible harms to the community from the offender's future risk of reoffending in a manner that may adversely affect community safety. That risk may be different depending upon how the sentence of imprisonment is served. The section implicitly rejects any assumption that fulltime detention will most effectively promote community safety. It requires the Court to look forward to the future possible impacts of the sentence of imprisonment.
The nature and content of the conditions that might be imposed by an ICO will also be important in measuring the risk of reoffending, but community safety is not the sole consideration in the decision to make or refuse to make an ICO. It would usually have a decisive effect unless the evidence is inconclusive. As Basten JA noted in Stanley v Director of Public Prosecutions [2021] NSWCA 337, they do so, "In different ways and at different points in time". If a person is imprisoned, community safety can be protected by their removal from the community and by a period of supervised liberty on parole, but if a Court has some confidence in an existing process of rehabilitation in the community which is already underway, the longer-term likelihood of reoffending may be diminished by not sending the person to prison: Stanley Basten JA [93].
Gaol might cause an offender to dwell on what they did and to refrain from committing crimes on release: Stanley Leeming JA at [146]. Although sadly given the recidivism rate this purpose is not borne out either by research or long experience, an extended period in fulltime detention can, as Leeming JA noted, lead to accompanying dislocation from housing, employment and social structures, increasing the risk of reoffending upon release. See also, "Does Imprisonment Deter?" a review of the evidence, Sentence Advisory Council Victoria, April 2011, page 126.
In R v Pullen [2018] NSWCCA 264 at [84], Harrison J, as he then was, (Johnson and Schmidt JJ agreeing), said of the concept of "community safety" in s 66: "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 fulltime custodial sentence is more likely to address the offender's risk of reoffending. The concept of community safety, as it is used in the Act, is therefore inextricably linked with consideration to rehabilitation."
In R v Zheng [2023] NSWCCA 64, Gleeson JA noted that five points emerged from the joint judgment in Stanley: 1. The power to make an ICO requires an evaluative exercise that treats community safety as the paramount consideration with the benefit of the assessment mandated by s 66(2). The issue is not merely the offender's risk of reoffending but the narrower risk of reoffending in a manner that may affect community safety. 2. Section 66(2) is premised upon the view that an offender's risk of reoffending may be different depending upon how their sentence of imprisonment is served and implicitly rejects any assumption of fulltime detention of the offender will most effectively promote community safety. 3. The nature and content of the conditions that might be imposed by an intensive correction order will be important in measuring the risk of reoffending. 4. The consideration of community safety required by s 66(2) is to be undertaken in a forward-looking manner, having regard to the offender's risk of reoffending. 5. While community safety is not the sole consideration in the decision to make or refuse to make an ICO, it will usually have a decisive effect unless the evidence is inconclusive.
When considering whether to impose a fulltime detention or an intensive correction order I apply those principles. I adopt the forward-looking approach referred to in the joint judgment in Stanley to the assessment of community safety as the paramount consideration, together with subordinate considerations in s 66(3).
Accordingly, I am satisfied that the risk of the offender reoffending in a manner that may affect community safety would be better reduced by an ICO than fulltime imprisonment for the following reasons: 1. The offender has excellent prospects of rehabilitation; 2. It is unlikely that he will be before a Court again; 3. He is employed. 4. He is in a pro-social relationship with financial dependents.

R v Lindrea - [2024] NSWDC 148 - NSWDC 2024 case summary — Zoe

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Judgment (18 paragraphs)

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Cases Cited (9)