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Parties: The Queen (Crown)

Akis Livas (Offender)

Representation: Counsel

S Saikal-Skea (Crown)

S Whybrow (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Aulich Criminal Law (Offender) File Number: SCC 77 of 2019

MOSSOP J:

Introduction

1. The offender, Akis Livas, pleaded guilty in the Supreme Court to one count of culpable driving causing death contrary to s 29(2) of the Crimes Act 1900 (ACT), the maximum penalty being 14 years’ imprisonment (CC2018/12078).

2. While driving a truck, the offender drove into the rear of a vehicle in which a family was innocently and happily travelling to the shops. A four-year-old child suffered catastrophic head injuries and died as a result. His family has been devastated by his loss.

3. To describe this case as a tragedy does not fully convey the raw suffering of the victim’s family which must be acknowledged in these proceedings. I adopt the language previously used by Justice Refshauge and the Chief Justice in cases like this:

I appreciate that no sentence I can impose will resolve the tragedy that the [family] of [the deceased victim is] experiencing and the trauma suffered by [the victim’s family]. The sentences I impose should not, in any way, be seen as reflecting on the value of the [life] of [the deceased victim]. It would be wrong to attempt any such equation for our law simply does not allow that to be made even were it possible. I have to judge [the offender] not merely according to the awfulness of the tragic results of his actions but in accordance with the law and the principles of sentence which I must apply.

See R v Richardson [2016] ACTSC 133 (Richardson) at [5]; R v Creighton (unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 28 October 2010).

The offence provision

4. Section 29(2) of the Crimes Act 1900 provides:

(2) A person who, by the culpable driving of a motor vehicle, causes the death of another person is guilty of an offence punishable, on conviction, by imprisonment for 14 years.

5. Section 29(6)-(7) provides:

(6) For this section, a person shall be taken to drive a motor vehicle culpably if the person drives the vehicle –

(a) negligently; or

(b) while under the influence of alcohol, or a drug, to such an extent as to be incapable of having proper control of the vehicle.

(7) For this section, a person shall be taken to drive a motor vehicle negligently if the person fails unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case.

6. Although, contrary to s 29(8), the terms of the indictment did not make this express, the charge that was committed relied upon the negligence limb of s 29(6).

7. Therefore, by his plea of guilty, the offender has accepted that his conduct involved failing unjustifiably and to a gross degree to observe the standard of care that a reasonable person would have observed in all the circumstances of the case. Facts

8. The facts were agreed and set out in a statement of facts which was tendered by the Crown. Those agreed facts cover the circumstances of the accident which led to the charge and the medical history which was relevant to the offender’s negligence for the purposes of the section.

The incident

9. The offender was a truck driver for a company which traded under the name Canberra Sand and Gravel (CSG). He drove a 7 tonne medium rigid tipper truck. On 28 July 2018 he made a delivery to Burra in New South Wales that morning. He was driving northbound on the Monaro Highway in Hume in order to return to the CSG yard.

10. Andrew Corney was also driving northbound on the Monaro Highway. He was in the car with his wife Camille Jago and their two sons Blake Corney, aged four, and Aiden Corney, aged two. The boys were in the back seat. They were travelling to Toys “R” Us at the Majura Park Shopping Centre.

11. The Corney’s vehicle was stationary in the northbound lane of the Monaro Highway at the intersection with Mugga Lane. The offender in his truck drove up behind them and crashed at about 70 km/h into the rear of the Corney’s vehicle. The collision caused Blake Corney to die immediately from a catastrophic brain injury. The accident was captured by dashcam footage from the offender’s vehicle as well as footage taken from a vehicle waiting to cross the Monaro Highway at the Mugga Lane intersection.

12. The aftermath of the crash was horrific. The nature of the injuries suffered by Blake were confronting. Mr Corney and Ms Jago got Aiden out of the car. Mr Corney then went to check on Blake. He was confronted by the scene of his young son who had obviously died by reason of the catastrophic brain injuries (which are described in more detail in the statement of facts and in exhibit 3).

13. The offender was treated at the scene by two ambulance paramedics and he said to them “I was driving my truck and at some point I blacked out”. He made similar statements to staff at the Canberra Hospital.

14. The police investigation identified that one minute and five seconds before the collision the offender’s truck had successfully negotiated a roundabout and that the Corney’s vehicle was visible from the truck from a distance of 344 m and was stationary for 16 seconds before the collision. A collision investigator identified that at the point of impact the offender had already commenced braking.

The offender’s medical history before the accident

15. The medical records of the offender are derived from records of his general practitioner (GP) at the Tuggeranong Square Medical Practice as well as from the Alexander Maconochie Centre (AMC) where he was previously incarcerated for unrelated offending.

16. In 2010 a psychologist who completed the induction to the AMC recorded that the offender “described frequent waking at night (but able to get back to sleep relatively quickly)”.

17. In 2013 medical records of Justice Health Services and the Canberra Hospital Emergency Department reveal:

(a) the offender had a possible diagnosis of sleep apnoea;

(b) the offender described symptoms of sleep apnoea; (c) the offender reported significant insomnia, breathlessness and orthopnoea (shortness of breath when lying flat);

(d) the offender was at risk of cardiac arrest;

(e) the offender was advised to see his GP to review blood pressure, cholesterol and possibility of sleep study and for an outpatient exercise stress test; and

(f) the offender had a discharge plan advising him of the matters referred to in (e).

18. On 3 September 2013 he was referred to Dr Peter Jones at the Canberra Hospital Sleep Clinic. The referral was for a sleep study and recorded that the offender reported broken sleep and that after a recent presentation at the Canberra Hospital Emergency Department he was recommended to be referred to a sleep specialist. That referral was never acted upon by the offender. He saw his GP within two months of that referral but there is no record of him notifying his GP of the referral then or at any later time.

19. In 2015 the offender was again in custody at the AMC. Medical records dated 22 February 2015 indicated that he snored intermittently and reported no daytime sleepiness or falling asleep. On 15 April 2015 he was discharged with what was recorded as a “medical issue identified on initial assessment” of sleep apnoea.

20. On 11 April 2017 he underwent a driver licence medical examination by his treating GP at the Tuggeranong Square Medical Practice. He was cleared to drive by his treating GP. That medical examination positively asserted no sleep disorder because a referral was required to an appropriate specialist for all commercial drivers with a diagnosed sleep disorder. In June 2017 the offender presented to the same GP reporting drowsiness during the day, in heat, and after lunch. The GP noted possible sleep apnoea and that a sleep study was needed. On 31 July 2017 he was referred by a different GP at the same practice to undertake a sleep study at the Canberra Hospital Sleep Clinic. The referral noted “possible sleep apnoea”. The referral was reprinted on 3 August 2017. On 7 August 2017 the GP noted that he was still waiting for the sleep study. The sleep study was never attended to by the offender.

21. On 8 November 2017 the offender completed a written application for employment with CSG.

22. In answering the questions on the application form he asserted that he was in good health and that he was not aware of any injury, illness or condition which may affect him performing all the duties required by the position. On 14 November 2017 he commenced employment with CSG as a truck driver.

23. On 24 January 2018 he applied to renew his heavy vehicle driver licence with the ACT Road Transport Authority. He ticked the box indicating that he did not suffer from any “Long term illness, injury or condition that could affect your ability to drive safely.” His licence was renewed.

24. In the few days leading up to the collision he felt more tired than usual.

The offender’s medical history after the accident

25. The accident occurred on 28 July 2018. On 9 January 2019 the offender underwent a sleep study at the Canberra Hospital Sleep Disorders Unit. He was diagnosed with very severe obstructive sleep apnoea. The doctor who made the diagnosis was Dr Huang, to whom he had been referred in 2017. Dr Huang noted that the offender “Should not be operating a motor vehicle or heavy machinery until his severe obstructive sleep apnoea is adequately treated and he can demonstrate compliance to CPAP therapy”. Why the offender was culpable

26. The agreed statement of facts records the basis upon which the Crown asserted, and the offender accepted, he was culpable. It provides:

The offender’s driving on 28 July 2018 was culpable for the following reasons:

1. Since 2013, the offender was on notice that he may have had sleep apnoea. Over the subsequent years he had reported, variously, insomnia, breathlessness and drowsiness, to medical practitioners;

2. The offender had never sought diagnosis and/or treatment for possible sleep apnoea, and failed to attend to two sleep study referrals (2013, 2017);

3. The offender did not inform his employer of his possible sleep apnoea, either before he commenced employment, or at any later time. Before commencing employment on 14 November 2017, the offender positively asserted that he was in good health and that he was not aware of any condition which may affect his performance of his duties;

4. The offender did not inform the ACT Road Transport Authority of his possible sleep apnoea when applying to renew his heavy vehicle licence on 24 January 2018;

5. The offender felt tired more than usual during the few days leading up [to] the collision;

6. At the material time the offender was driving a heavy vehicle in the course of his employment as a truck driver.

The offender failed to maintain proper control of his vehicle, which caused the death of Blake Corney. Given the above 6 facts, the offender’s driving at the material time was culpable.

27. It is important to note that this articulation of culpability does not identify any actual knowledge on the part of the offender that he had sleep apnoea or any knowledge that a doctor had recommended to or instructed him that he should not drive.

28. The Crown placed particular emphasis upon the fact that the standard of care that a commercial truck driver would have adopted in relation to health issues associated with fatigue management was significantly higher than that which would be adopted by an ordinary member of the driving public.

29. So far as the causal link between the culpability and the accident was concerned, counsel for the Crown identified that, in light of what occurred following the diagnosis of sleep apnoea in January 2019, had the offender had his condition investigated earlier he would not have been driving the truck at the time. As a consequence, the causal link between the culpability and the accident was established. Counsel for the offender did not take issue with this chain of reasoning.

Victim Impact

30. The victim impact statements that were read by Blake Corney’s mother and father reflected the awful and tragic loss of their son. It is not possible to adequately summarise the devastating effect upon each of them described movingly in their statements. Both demonstrated considerable strength and determination to be able to read them aloud in court. The effects upon them are described in detail in their statements. Blake’s loss has obviously transformed their lives and the life of their other son. The consequences of the loss of their son are likely to be a significant influence on them and their surviving son for the rest of their lives.

31. The statements of Brian Jago and Susan Jago, the grandparents of Blake, also attest to the completely awful situation that they found themselves in as a result of their grandson being killed and their daughter and son-in-law’s lives being completely changed.

32. The statements bring home in a very real way the fact that the death of a young child such as Blake has not only a devastating effect upon his immediate family but involves consequences which spread more widely in the community. An important purpose of the sentencing process is to recognise the harm done to the victims, although the sentencing process in fact can do very little to address the awful loss that the family has suffered.

Objective seriousness

33. Both parties accepted that the driver’s moral culpability must be taken into account in sentencing, even though the offence was proved by establishing that the driving involved the type of departure from the standard of care described in s 29(7). An unjustifiable and gross departure from the standard of care that a reasonable person would take can occur without intention to do something dangerous or knowledge that it was dangerous.

34. Counsel for the offender emphasised the absence of any knowledge on the part of the offender that he suffered from the sleep apnoea condition that was subsequently diagnosed and the certification of fitness to drive by the offender’s long term GP in April 2017. He submitted that such a circumstance clearly distinguished this case from one in which the offender knew that what was occurring was dangerous, such as:

a) where a driver is intoxicated by alcohol (Richardson), or illicit drugs (R v Smith [2019] ACTSC 65 (Smith));

b) where the driver drives at excessive speed (Smith); or

c) where there is evidence that the driver knew that he was suffering from the effects of fatigue immediately prior to the accident (Board v The Queen [2013] VSCA 190 (Board); Director of Public Prosecutions (Vic) v Borg [2016] VSCA 53; 258 A Crim R 172 (Borg)).

Such cases involve an element of moral culpability not present in this case.

35. This is not a case involving an immediate and obvious risk of which the offender was conscious at the time of the offending. Rather, it was conduct which involved a systematic failure to take steps which a professional truck driver ought reasonably to have taken. The objective gravity of the offending would have been increased had the offender had a clear diagnosis of sleep apnoea or had he been told expressly that he should not drive until his condition had been further investigated.

36. The plea of guilty recognises that his conduct was a gross departure from the standard of a reasonable person in his position and that the departure was unjustifiable. The significant factor in determining his moral culpability is the obviousness of the risks associated with driving large trucks on urban roads. Whether through ignorance or personal failings, the failure by a professional truck driver to properly attend to health issues associated with the management of fatigue and the failure to make any disclosures of the matters of which he was aware involves moral culpability because it imposes upon others increased and unnecessary risks associated with the use of such large dangerous vehicles. I assess the objective seriousness of the offender’s conduct as being in the mid range for this offence.

Subjective circumstances

37. The offender’s subjective circumstances are set out in a pre-sentence report prepared by ACT Corrective Services dated 23 April 2020.

38. He is 57 years old. He was born in Greece and moved to Australia with his family when he was three years old. He reported strong relationships with all his family members, which includes a large extended family. In 1982 the offender’s father died as a result of a motor vehicle accident.

39. He has two children from a previous relationship, and one grandchild from his son. He reported that these relationships were positive and supportive, although indicated that there have been periods of limited contact over the years. The offender has been in a long-distance relationship with a woman in Greece for the past nine years. His mother confirmed all this information and verbalised her ongoing support for her son.

40. He reported that after completing high school he joined the Australian Navy, serving two years from 1980 to 1982 and specialising in “Fitting/Machinery”. After leaving the navy the offender reported that he had a mainly stable employment history, consisting of many positions within the building and construction industry including truck driving. There were some intermittent periods of unemployment over the years.

41. Prior to being remanded in custody he lived with his mother, which he had done on and off since 1972. The offender reported no debts. He was in receipt of Centrelink Newstart payments prior to being remanded.

42. He reported no issues with alcohol consumption or with the use of cannabis or any other illicit substance.

43. The offender reported that when in the community his free time was mainly spent with his family.

44. The offender has been a patient of the Department of Respiratory and Sleep Medicine Outpatient Clinic at The Canberra Hospital since 17 December 2018. The sleep study conducted on 9 January 2019 demonstrated a very severe obstructive sleep apnoea. He uses a continuous positive airway pressure (CPAP) machine on average three to four hours per night. He has a history of high blood pressure.

45. The author of the pre-sentence report noted that the offender appeared visibly upset when discussing the offence. He demonstrated insight into the impact that his actions would have had and would continue to have on the victim’s family, other road users and himself. The accident caused him to reflect on his own father’s death as a result of a motor vehicle accident.

46. The author’s opinion was:

Mr Livas is a 57 year old man who has a lengthy and varied criminal history. He appears to have the benefit of a number of protective factors when in the community – stable accommodation, a supportive family and employment. Due to the nature of the offence and similar family loss as the result of a motor vehicle accident it would seem Mr Livas may benefit from appropriate counselling to gain the necessary tools to manage any associated grief. Mr Livas has been assessed as a medium to low risk of general reoffending.

47. He provided a letter of apology to the court indicating his grief at the tragic consequences of his actions. He was diagnosed with Major Depressive Disorder by a clinical psychologist that he was seeing for the purposes of a worker’s compensation claim. He has completed a number of courses whilst in custody.

Criminal history

48. The offender has a criminal history. Between 1983 and 1988 (when the offender was 30 to 35 years old) he committed a significant number of driving offences which would today be dealt with by traffic infringement notices. He does however have two convictions in 1988, for driving in a manner dangerous and for negligent driving. There is no information about the circumstances of that offending. There is a gap in offending between 1988 and 2000. In 2000 he has a series of convictions in New South Wales relating to drugs and motor vehicles which were dealt with by way of modest fines. He has convictions for minor offences in 2003. He has convictions from 2010 of driving while suspended. He has 10 convictions for making off without payment in 2010 for which he was given an aggregate sentence of imprisonment of nine weeks by Teague AJ: see R v Livas (unreported, Supreme Court of the Australian Capital Territory, Teague AJ, 16 November 2010). This involved non-payment for hotels or serviced apartments. In 2015 he was convicted of sexual intercourse without consent and sentenced to 25 months’ imprisonment. The circumstances surrounding that offending were unusual and are described in the sentencing remarks of Penfold J: R v Livas [2015] ACTSC 50.

49. The criminal history does not demonstrate any consistent pattern of offending. In particular, it does not disclose any pattern of offending for negligent or dangerous driving. However, it is sufficient to indicate that the offender is not entitled to any significant leniency on the basis of his past record.

Plea of guilty

50. The offender pleaded guilty to the single count on the indictment on 19 February 2020. This plea occurred after the criminal case conference on 7 February 2020, with the trial due to start in the week of 2 March 2020. There was clearly a significant utilitarian value in the plea, having regard to not only the court time and resources that would be involved but also the re-traumatisation that would occur during the course of the trial of those who had been unfortunate enough to experience the accident or its aftermath. In my view, consistently with the decision in Cranfield v The Queen [2018] ACTCA 3 at [37]-[38], it is appropriate that the utilitarian value of this plea be recognised by a discount of approximately 12% on the sentence that I would otherwise have imposed.

Time in custody

51. The offender was remanded in custody on 19 February 2020 following his arraignment. The total time spent in custody solely attributable to this offence is 79 days (19 February 2020 - 7 May 2020). The appropriate backdate date for a sentence of imprisonment is 19 February 2020.

Comparable cases

52. I was referred to a number of cases which were said to be comparable to the present case. They were Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80; R v Kekalainen [2014] ACTSC 132; Richardson and Smith. I have also had regard to the decision in R v Wolter (No 3) [2015] ACTSC 321. I was also referred to some Victorian cases: Board; Borg. None of these cases involved culpability of the type involved here. Rather, they involved departures from the standard of reasonable care more immediately associated with the consequences of that departure in the death of the victim. Nevertheless, I have had regard to them insofar as they disclose sentencing practice in this court or for similar offences in factually similar circumstances.

Consideration

53. In sentencing for this offence general deterrence must be given considerable weight. Having regard to the maximum penalty and the nature of the offence, an offender is likely to serve a significant term of imprisonment. Obviously, regard must be had to the variations in moral culpability of the person who is responsible and there may be cases in which the low level of moral culpability warrants a sentence other than a custodial one. These propositions are consistent with those identified in Director of Public Prosecutions v Oates [2007] VSCA 59; 47 MVR 483 at [21].

54. It is correct that in this case most of the aggravating factors identified in R v Whyte [2002] NSWCCA 343; 55 NSWLR 252 at [216]-[217] are not present here. As pointed out earlier the nature of the offending in the present case involved a systematic failure by the offender to investigate or disclose a potential risk to his capacity to drive. That is to be contrasted with the more immediate departures from the standard of care which are addressed in the cases.

55. This case involves a lack of capacity arising from an untreated condition of which the offender failed to have properly investigated. He failed to investigate his health in circumstances where he was repeatedly told that he ought to. Had he done so he would not have been driving at the time of the accident. Had he disclosed his own failure to investigate this condition to his employer or as part of his licence application then that would have led to a chain of inquiry which would have taken him off the road.

56. The plea of guilty recognises that a professional truck driver must take very seriously any risks to their health associated with fatigue or a lack of concentration. Heavy vehicles on the road have a great capacity to injure the users of other smaller vehicles. Other road users are therefore vulnerable to any lack of competence or capacity of the drivers of heavy vehicles to drive them safely. As this case illustrates, entirely innocent road users going about routine activities of daily life may suffer death as a result of a lack of competence or capacity on the part of drivers of heavy vehicles. That puts a heavy duty on such drivers to investigate and disclose diagnosed or suspected health conditions which may affect their competence or capacity to drive safely.

57. The offender had a number of opportunities to investigate or disclose such issues and unreasonably failed to do so. That even with these failures he was still able to be on the road driving a commercial vehicle does suggest that there were failures in the regulatory system for persons in his position. However, that does not detract from his personal duty to take care for the safety of others.

58. The authorities recognise that in relation to this type of offence general deterrence must be a very significant sentencing consideration. However, that is all the more so in relation to a case such as this which relates to a systematic failing by the offender. That is because he falls within a class of professional drivers:

(a) who routinely and constantly drive vehicles which, because of their mass and momentum, are, unless driven carefully and competently, extremely dangerous to the occupants of smaller vehicles who share the road; and

(b) who are subject to commercial pressures which otherwise create significant incentives to fail to disclose health issues that may affect a driver’s competence or capacity, or to not have such issues properly and promptly investigated and to continue to drive in the meantime.

59. Specific deterrence is an issue in this case, although a relatively minor factor. Holding the offender accountable, denouncing his conduct and recognising the appalling harm done to the victims of the crime and the community are also very significant matters.

60. I have taken into account the cases referred to earlier as indicating current sentencing practice in relation to the offence of culpable driving causing death. However, as I have indicated, this case is not closely comparable to them because it does not involve short term negligence directly connected with the circumstances of the accident. Rather, as I have endeavoured to explain, this case involves a systemic failure on the part of the offender which accumulated over a substantial period to the extent to which it met the threshold in s 29(7). While the comparison of cases of immediate and systematic negligence is not easy, I have not assumed that systematic negligence is necessarily less serious than negligence closely temporally associated with the accident giving rise to the death.

61. In my view the seriousness of the offending is such that, having regard to the available options, only a custodial sentence is appropriate. The appropriate starting point is a sentence of 44 months (three years and eight months) imprisonment reduced to 39 months (three years and three months) on account of the plea of guilty. I do not consider that an intensive correction order would be either useful or appropriately fulfil the purposes of sentencing in this case. Further, I do not consider that a suspended sentence would adequately fulfil the purposes of sentencing. The non-parole period will be 27 months which is 70% of the head sentence.

62. It is appropriate that under s 62(1) of the Road Transport (General) Act 1999 (ACT), the offender’s licence be cancelled for a period of 25 months. Further, such a period of disqualification enlivens the power under s 65 of that Act to disqualify the offender until further order of the court. I consider that it is “necessary in the public interest” within the terms of that section to make such an order. Having regard to the offender’s now diagnosed sleep apnoea condition, the safety of road users requires that he be disqualified until he can demonstrate that this condition does not mean that he poses a risk to other road users. Such an order was not opposed by the offender.

Orders

63. The orders of the Court are:

64. On the charge of culpable driving causing death, the offender is sentenced to imprisonment for 39 months, from 19 February 2020 until 18 May 2023.

65. The non-parole period commences on 19 February 2020 and ends on 18 May 2022.

66. Pursuant to s 62 of the Road Transport (General) Act 1999 (ACT), the offender is disqualified from holding or obtaining a driver licence for 25 months from the date of this order.

67. Pursuant to s 65 of the Road Transport (General) Act 1999 (ACT), the offender is disqualified from holding or obtaining a driver licence from the expiry of the period identified in the previous order until the disqualification is set aside under s 65(3) of the Act.

68. I direct that Exhibit 3 be returned to the Director of Public Prosecutions.

I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.

Associate:

Date: 19 May 2020