Solicitors:
Director of Public Prosecutions - Crown
Nadia's Law - The offender
File Number(s): 2013/347675
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SENTENCE
HIS HONOUR: It is a fundamental rule in sentencing that the sentence imposed on an offender reflect the objective gravity of that person's conduct. That rule applies even in a case of powerful subjective features, and that rule explains the sentence that will ultimately impose upon the offender in this case.
One sunny day in August 2013 the offender Steward Read was driving a prime mover with an unladen low loader behind him. He was travelling south along the Pacific Highway in an area where the speed limit was 110 kilometres per hour. His vehicle was limited to 100 kilometres per hour. He was travelling below that speed.
Up ahead of him was a Roads and Maritime Services mowing operation which consisted of a tractor with a slasher attached doing the mowing and two associated warning vehicles between the tractor and vehicles approaching. Those two warning vehicles were highly visible, both being equipped with flashing lights and signs.
Despite that circumstance the offender did not see the first warning vehicle at all and by the time he saw the second warning vehicle his only option was to swerve left, leaving the roadway. Unfortunately the tractor, with Mr Gary Hughes sitting on it, was directly ahead of him. The offender tried to steer his vehicle to the right to get back onto the roadway and miss the tractor but he was unsuccessful. His prime mover and the tractor collided. The tractor was destroyed and Mr Hughes was severely injured.
As a result of this the accused faced trial on one charge of dangerous driving occasioning grievous bodily harm. The only issue in the trial was whether the Crown had proved beyond reasonable doubt that the offender was driving dangerously. By their verdict the jury clearly found in favour of the Crown on that issue. Any other verdict would have been a surprise.
The evidence established that the offender was not looking where he was going for something in the order of 21 seconds. In that time the offender approached and then drove past the first warning vehicle, a highly visible utility in which Mr Leith Newell was sitting, without even noticing it.
That utility was parked by the side of the road. It had a trailer behind it on which was mounted a large sign indicating the left lane was closed and that vehicles should merge right. There was also an 80 kilometres per hour ahead sign. The utility itself was white with colourful stripes on its rear. The trailer was silver and yellow. The speed sign was of the standard appearance with black numerals surrounded by a red circle on a white background. The large sign was bordered in yellow, had a black background and had words spelt out on it in yellow lights.
Despite all that, there is no doubt that the offender failed to see Mr Newell's vehicle. A truck driver following closely behind the offender described how the offender drove his vehicle. He did not move to the right, as the sign on Mr Newell's ute said he should do, nor did he decrease his speed from the 95 kilometres per hour at which he had been travelling.
The offender then approached the second warning vehicle, described in the trial as a shadow vehicle. It too was highly visible with flashing lights and a large item known as an attenuator behind it. This is a structure designed to absorb impact. The truck had a large arrow board on top with flashing lights indicating that motorists should move to the right. There was an illuminated 80 kilometres per hour road work sign on the truck too and the rear of the truck itself was largely painted with bright red and yellow stripes. The attenuator had a large panel facing oncoming traffic with red and white chevrons painted on it.
Despite these highly visible markings it appears that the accused only saw the shadow vehicle when he was about four seconds away from it, causing him to have to make the emergency steering move I have described above.
What the evidence revealed was that the accused was not looking where he was going for a considerable period of time. At his trial Mr Bonnici of counsel, who does not appear on sentence, attempted to demonstrate a possible reason the accused was not looking where he was going as he approached the work site. Mr Bonnici suggested that it was reasonably possible, if not likely, that the offender was distracted by three Harley Davidson motorcycles passing him on his right. I do not find it necessary to decide whether that is what distracted the offender or whether it was, as he told police, that he had been looking at attractive female occupants of other vehicles on the road. Whatever it was that distracted the offender, it was clearly dangerous for him to not look where he was going for about 21 seconds.
A great deal of the trial was taken up with evidence as to the adequacy of the traffic control plan put in place by Roads and Maritime Services for this mowing operation. An expert called by the Crown and an expert called by the defence both agreed that it was inadequate. There is no doubt that things could and probably should have been done better by the RMS. In one sense this collision may not have occurred if more adequate traffic control measures had been put in place. But the obvious must also be stated: the collision would not have occurred if the offender had been paying proper attention to the road ahead.
An expert called on behalf of the offender at trial gave evidence that research suggests that drivers are only aware of things which are five to seven seconds down the road. The expert called by the Crown agreed with that opinion in normal circumstances but he, Mr George, questioned whether that researched applied to the situation faced by the offender on 28 August 2013. What was up ahead of him should have been visible to any attentive driver and gave plenty of time for that driver to respond to the warnings by changing lanes and slowing down.
This was not a case of momentary inattention at all. This was a sustained piece of dangerous driving, dangerous because the offender was simply not looking where he was going for an extended period of time. The offender was driving a heavy vehicle which magnified the risks he posed to others on the road or nearby.
Twenty-one seconds is not a "moment". I recognise that the language in Court of Criminal Appeal decisions is not to be treated as though it was the language of a statute, but even so I have no doubt that the Court of Criminal Appeal in the guideline judgment of R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 never contemplated that a sustained piece of driving, where the driver was not looking where he was going for 21 seconds, could be a case of momentary inattention. I am fortified in this conclusion by a decision to which I have referred today; Kerr v The Queen [2016] NSWCCA 218.
In deciding the sentence to impose upon the offender attention must of course be paid to the effect of the offence on the victim of it, Mr Gary Hughes. He has not provided a victim impact statement. I understand that he wishes to get on with his life. Evidence at trial was given as to his injuries, both in the form of evidence from Mr Hughes himself and also in a statement of agreed facts tendered to the jury. From that I know that Mr Hughes had multiple broken ribs on both sides of his chest and a broken bone at the front of the chest that joins the ribs. The broken ribs caused injuries and bruising to both his lungs, he also had some bruising to his heart muscle. Due to the injuries to his lungs and ribs his chest cavity filled with air and blood, he had large tubes inserted into his chest cavity on both sides to drain the blood and air.
He had an injury to his left lumbar artery which caused blood to collect in his pelvis, this artery was actively bleeding at the time and a wire was introduced under x‑ray guidance to block the bleeding from inside. Due to his chest injuries and blood lost he required intubation, he remained intubated for five days and when he was in the intensive care unit for seven days.
He had fractures in his spine. They were of the L1 to L5 transverse processes. He also had a fracture of his collar bone, his elbow and two teeth. Glass was removed from his elbow during surgery and a laceration of his scalp was sutured. That was the evidence as to the treatment administered to Mr Hughes whilst in hospital.
When he was called to give evidence it was clear that he had no memory of the collision and indeed said that he could not remember events up to a week before the collision. His first memory, he said, was probably about eight days after coming out of a coma. He was asked whether he had any ongoing problems, he said, "Yes, I've got brain damage basically. I've got problems with my leg or my left knee and my back". When he was asked what he meant by problems he said, "They shoot pain. I still got a horrible knee. It just shoots pain basically".
These injuries, whilst of course not as significant as some injuries occasioned by victims of dangerous driving occasioning grievous bodily harm offences, were nevertheless serious. I am told that Mr Hughes has been able to return to work and so the injuries are clearly not such that they have prevented him from working, but I am able to find that the consequences to Mr Hughes of the offender's dangerous driving are likely to be lengthy and serious, if not permanent.
In common with many other offenders appearing for sentence for offences of this type Mr Read is a person of otherwise good character. He is now 41 years of age. He lives with his mother in Concord. He has a positive relationship with her. He had a positive relationship with his father until his father's untimely death relatively shortly after the collision I have just described. He has an older sister who lives in country New South Wales, with whom he also has a positive relationship.
Mr Read has a daughter. She lives with his ex-partner in the southern highlands. Mr Read's mother gave evidence today about the positive relationship that Mr Read has with his ex-partner and how they cooperate in decisions concerning the welfare of their child.
Mr Read left school in year 10 and completed a certificate 3 in heavy vehicle motor mechanics at TAFE. Since 2004 he has been employed as a driver or mechanic of heavy vehicles. He has been employed by his present employer for some 13 years. His employer, Mr Clark, gave evidence in support of his employee, the offender, today. He described him in exemplary terms. He has been a good worker, never late, taking his job seriously. He said that he could not fault him in any way. Mr Clark is obviously proud of his employees, including the offender, who deal with difficult driving jobs on a daily basis. He contrasted his employees with those who drive over‑height vehicles into tunnels, for example.
Of course the offender's criminal and driving record were tendered to me. They revealed an offence of dangerous driving in 1994 when the offender was a child, showing misconduct of a nature which apparently has not been repeated since he became an adult. There also a number of traffic infringement matters on his criminal history which have to be looked at in the light of the circumstance that he drives many more kilometres per year than the average driver. He has had three traffic infringement notices since this collision. Two were explained in evidence today. They did not reflect badly on the offender, resulting from what was apparently fleet-wide confusion as to the type of licence that was required for driving jobs people. Mr Clark seemed to accept responsibility for that confusion, indicating that he had paid Mr Read's fines.
Of course Mr Peluso of counsel who now appears for the offender paid attention to the guideline decision of the Court of Criminal Appeal in Whyte. Before looking at that guideline judgment in some detail, it is as well to remember why the very first guideline judgment handed down by the Court of Appeal, Jurisic v R (1998) 45 NSWLR 209 and its successor, Whyte v R, came about. Jurisic was a response by the Court of Criminal Appeal to a series of Crown appeals, usually successful, in which sentencing judges imposed excessively lenient sentences, probably as a result of the circumstance that offenders appearing for sentence for offences of that kind did not easily fit the description of "criminal". They were, as this offender is, people of otherwise exemplary character who never intended to harm anyone else by their driving, but through dangerous misconduct on the roadway they have caused harm.
Of course powerful subjective features cannot be allowed to overcome the need for a sentencing judge to impose a sentence which reflects the need for general deterrence in a case of this kind. Road users, even those who do not easily fit the description of being a criminal, need to be made aware that they are involved in a dangerous activity, that they need to pay attention to what they are doing, and that they cannot allow themselves to be distracted for a period of up to 21 seconds. Such circumstances of course apply even more so when the person doing the driving is in charge of a heavy vehicle where the consequences of a collision are usually much more serious.
Many of the commonly recurring features identified in Whyte apply to this case. Obviously one does not, there was not a plea of guilty in this matter. Another commonly referred to feature concerned remorse displayed by the offender. I have no doubt that the offender has been deeply affected by the consequences for Mr Hughes of the collision. But I have my doubts as to whether the offender is truly as accepting of his own responsibility for those injuries, as he should be.
In the pre-sentence report, this appears:
"Mr Read agreed with the police facts, however during the interview process he asserted that there were other contributing factors which he believes contributed to the accident, namely the warning signs did not provide him sufficient distance to stop."
Mr Read confirmed that that was his belief in evidence today. I have to say that Mr Read's attitude is wrong. The warning signs were visible from some distance away. Had he been paying attention to the road on which he was travelling, he would have seen them. It is remarkable that Mr Read drove past Mr Newell's utility with its trailer attached without even noticing it. The warning signs, contrary to what Mr Read asserts, did provide him with sufficient distance to stop.
I do not want to minimise however the effect of this collision on the offender himself. The psychological report speaks of the consequences for him of the events of that day. He is, according to the psychologist, suffering from post-traumatic stress disorder. It would be a rare person who has injured another person significantly through their dangerous driving who does not reflect constantly on the consequences of that driving for the injured person. However, this offender, Mr Read himself, appears to have taken matters to heart more than most. I accept that in many senses he has already suffered because of his misconduct. In Mr Read's case the consequences for him were exacerbated by the untimely death of his father shortly after the collision.
Of course one consequence for the offender will be that he loses his licence for a period of time. Ordinarily, as a truck driver, that would mean that he loses his job. Mr Clark generously and, as a reflection of how well he regards Mr Read as an employee, will keep the offender on as a mechanic although his income will probably halve as a result of him losing his licence.
There will be other consequences too of course, it will be harder for the offender to visit his daughter. There will be consequences too if the offender is imprisoned. The offender's mother suffers from a condition whereby she cannot drive lengthy distances. As I mentioned, the offender's sister lives in country New South Wales so the offender's mother will suffer should the offender go to gaol. The offender's daughter will suffer as well. But the hardship to these people is not exceptional. I will nevertheless take it into account as part of the general mix of subjective features in the offender's favour.
I have determined the length of the sentence to impose upon the offender. It is such that an intensive corrections order is an available sentencing option. Mr Peluso impressed upon me an outcome which would involve me obtaining a report as to the suitability for the offender to serve his sentence through that means. I have given serious consideration of course to Mr Peluso's submission, but I have ultimately rejected it. I have done so for two particular reasons. The first is the authorities which bind me, in particular the guideline judgment of Whyte, and the second is the need to reflect in a very positive way the principle of general deterrence. Other truck drivers who are behind the wheel for hours at a time must know that if they allow themselves to be distracted, whether it is by attractive women in other cars, Harley-Davidson motor bikes overtaking them, or any other reason whatsoever, and as a result of such distraction they cause serious injuries to another road user, then significant punishment will result.
I recognise that the offender will pay a heavy price for his manner of driving, but in my view that is necessary, as I began these remarks on sentence, to reflect the objective gravity of his offending.
I will disqualify the offender from driving for a period of two and a half years from today. I impose a sentence of imprisonment consisting a non-parole period of nine months and a head sentence of 18 months to date from today. The non-parole period will expire on 5 July 2018 on which day the offender is to be released to parole.
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Decision last updated: 16 November 2017