Graham William Squires appears today for sentence in relation to two offences for which he was found guilty by jury verdict at the Wollongong District Court in late October last year.
I apologise to the Crown and Mr Squires for the delay in disposing of this matter. The verdict was received on 22 October, and I fixed the date for the sentence hearing, if not the imposition of the sentence in mid-December, but as it transpired the date I fixed was a date when I was not sitting, and I had to stand the matter over until after the Christmas break.
The two offences were specifically that on 28 June 2019 at West Wollongong in the State of New South Wales the accused did drive a motor vehicle, namely his Ford Territory vehicle, in a manner danger to a person or persons where the vehicle was involved in an impact the result of which caused the deaths of John Cerezo and Catherine Camilleri. These offences were committed on a Friday afternoon, shortly after 2:00pm.
There are two offences on a s 166 certificate of negligent driving causing death that in light of the verdict, will be withdrawn by the Crown and dismissed by me. I will make those orders shortly.
I firstly deal with the facts of the case as they emerge from the evidence. There is little dispute in relation to these matters. The deaths of the two deceased were caused by the one course of driving by the prisoner. I have neglected to point out that the maximum penalty for each of the offences is 10 years imprisonment. There is an automatic disqualification period of three years and a minimum disqualification period of 12 months provided for under the Road Transport Act. There is no standard non-parole period. I was not addressed by counsel in respect to disqualification and I may need some assistance in relation to the aspect of the effect of the prisoner's suspension which as I understand it has run from 28 June 2019 until the present time.
The relevant impact occurred on the M1 Motorway which takes traffic southwards and northwards around the Wollongong CBD. The impact that caused the death of the deceased, as I said occurred, shortly after 2:00pm on Friday 29 June 2019.
The prisoner earlier in the day had visited his father-in-law in a nursing home in the northern suburbs of Wollongong. He was on his way to Shoalhaven Heads for a period of respite from the care of his son, which I will say more about later.
On the account he gave to the police, which I have no reason to doubt, he said that he would take a break from the care of his son and travel from the North Coast to Shoalhaven Heads where he would seek rest for a week and recover from sleep deprivation from caring for his son.
As I understood his account to the police, normally he travelled to Shoalhaven Heads by driving not through Wollongong, but along the Hume Highway and down through Kangaroo Valley or Macquarie Pass. I accept that he was not particularly familiar with the area of road where the impact occurred. There is, it must be said, no suggestion that sleep deprivation or tiredness contributed to the circumstances of the impact.
The prisoner was travelling on the inside lane of the Motorway, having driven to the Motorway in a southerly direction along Memorial Drive which comes into merger with the Motorway from the northern suburbs of Wollongong. The Motorway itself comes from the Mount Ousley area, past the precinct of Wollongong University. The merge occurs at the beginning of a rise of a relatively straightforward stretch of road for the next couple of kilometres. At the merger of the road, approximately one and a half kilometres from the collision site, there are four lanes which become three lanes.
Approximately 500 metres or, perhaps slightly more from the place of impact, the inside lane upon which the prisoner's vehicle was travelling south became a left turn only lane, to enable traffic to turn off the Motorway, either to travel into the Wollongong CBD via Wollongong Hospital, or to travel to Dapto via Figtree on the Old Princess Highway.
The prisoner's vehicle travelled on the inside lane to a point where it is clear that he realised he needed to move into the middle lane in order to continue travelling south towards Shoalhaven Heads. At various times, as shown from dashcam footage from a B-double truck which I will refer to shortly, he was either driving alongside the cabin of the B-double or was driving slightly in front, but as I saw the evidence he was never more than a car length in front of the B-double.
The B-double's camera had vision of the course of travel of the B-double along the Motorway, past Wollongong University, to the point of merger of Memorial Drive and the Motorway up to the point of collision and subsequently.
The prisoner's vehicle on the Crown case crossed over into the middle lane when it was unsafe to do so at the crest of the rise causing the B-double to brake suddenly to avoid a collision with the rear or the side of the prisoner's vehicle.
The prisoner was driving a mechanically sound vehicle and no mechanical defect contributed to the impact. The car, as I said by reference to the particulars in the indictment, was a Ford Forrester in the nature of an SUV. The B-double was a Mack truck with a dog trailer, driven by a professional driver, Mr Sinclair.
When the prisoner's vehicle pulled in front of the B-double under a bridge that crossed the Motorway upon which is located Mount Keira Road. The B-double braked heavily to avoid a collision. The prisoner's vehicle was pushed initially towards the middle of the road striking the separation barrier between the southbound and northbound lanes and then bounced back in front of the B-double truck before it came to a stop.
The B-double came to a sudden stop in the middle lane at which time a Mitsubishi Pajero driven by Mr Cerezo, with Ms Camilleri in the passenger seat collided with the rear of what was described as the 'dog trailer', crushing the front end. Obviously Mr Cerezo had little warning of the stopping of the B‑double.
That impact did not cause the deaths of the deceased. An Isuzu truck driven by Mr Masi travelling behind the Pajero in the middle lane was unable to stop in time and collided with the rear of the Pajero. It would seem almost instantly a fire broke out, either in the rear of the Pajero or the cabin of the Isuzu, causing what appeared to be some form of explosion which effectively incinerated the contents of the Pajero and also incinerated the cabin of the Isuzu. The victims perished in that fire.
Mr Masi escaped from the truck. Other vehicles, about which there was evidence at the trial, stopped either behind or alongside or slightly in front of where the B-double truck came to stop. There were extensive photographs of the scene giving the jury an understanding of the relationship with cars to one another, including also an exhibit which set out the positions of the respective vehicles and the relevant witnesses to what had occurred.
As to the evidence of the various witnesses, for the purposes of this sentencing exercise, there is little point in analysing any differences in recollection that they have. Certainly in terms of the "mechanics" of the impact causing death there was little dispute. The issue of causation was left to the jury but in a factual sense it was hardly explored, bearing in mind the evidence of the driver of the Isuzu truck as to the distance he claimed he was from the Pajero at the time of the collision of the Pajero with the B-double.
There is no suggestion the prisoner was affected by alcohol or drugs at the time of the driving. Nor for that matter any other person involved in the various collisions. There is no suggestion of speed on the part of the B-double or for that matter the prisoner's vehicle.
It seems quite clear to me from viewing the dashcam and having regard to the oral evidence that at the time the prisoner finally stopped his car and got out of it to remonstrate the driver of the B-double for not giving him enough room to change lanes, which might be a damaging admission, both he and the driver of the B-double were unaware of what had actually occurred behind the Mack truck.
The full extent of the catastrophe would seem not to have been apparent to those two drivers until well after they had moved their vehicles from the centre lane and left-hand lane. The fire and explosion were obviously more apparent to those travelling alongside or behind the Isuzu truck than those travelling in front of it.
In fact the prisoner says, and I accept, that he was unaware of the deaths of the two deceased until he was interviewed at the police station. At the conclusion of the interview when he was asked if he had "anything else to say", having been extensively questioned, over 500 questions, about the incident, the prisoner replied;
"I'm just devastated at what's happened. And to see that car on fire, and just like it was just like - I just went weak at the knees, and just what the fuck's going on. The shock, it's a lot more than a shock, sorry".
The road was dry. Vision was excellent. The weather was fine. There was no object or item on the road surface that contributed to the impact. The road was well signposted. As the impact occurred near the crest of the rise the view ahead driving up the rise was clear to the crest (although there were two "crests" between the merge and the impact). There would appear to be no vehicle either directly in front of the accused's vehicle when it was on the inside lane, or relevantly in front of the B-double vehicle that obstructed the sight of both vehicles at any relevant time.
As I have said, the B-double truck was driving within the speed limit, as well was the prisoner. The prisoner may have slightly exceeded the speed limit as he sped up to cut across to the middle lane, but bearing in mind the speed limit there is 90 kilometres per hour, I doubt that that was so. As I said earlier, speed was not a contributing factor to the impact.
The Crown did not submit in final submissions to me that the prisoner was not indicating a change of lane at the time of his vehicle changing lanes and came into contact with the B-double. The Crown's case was the prisoner was driving in a manner dangerous because, firstly, he changed lanes in front of the B-double when it was not safe to do so. Having regard to the character of the lane he was in, that is a lane for left-turning traffic, having remained in the lane for too long, having regard to the relationship of his vehicle to the cabin of the B-double when he moved into the centre lane. Further, not giving the driver of the B-double sufficient notice that he was going to change lane causing the B‑double to brake suddenly, having regard to the character of that vehicle that he pulled in front of and the fact that it was a busy road with a great deal of traffic on it at that time.
The prisoner's conduct was submitted to the jury as a "significant and substantial contributor" to the impact that caused the death of the deceased persons in the circumstances where that conduct was dangerous to other persons. The jury was satisfied of that beyond reasonable doubt.
Turning to other evidence in the case concerning the circumstances of the prisoner. The prisoner is now 67 years old. I pointed out earlier he was born in July 1953, at the time of the collision he was about to turn, on my calculation, 66 years of age.
He has been a licensed driver since 1975. He has no prior relevant criminal convictions. He has no convictions or infringement notices for what his counsel described as "major offences" as they are defined under the relevant legislation. His first infringement notice came six years after he received his unrestricted licence. Therein after there are a number of exceed speed limit matters, eight in total I counted, but none involving speeding at more than 30 kilometres per hour above the speed limit. Between 1990 and 2017, there were a couple of other matters of minor character.
Having regard to the period of time over which he has been licensed and the character of matters, the infringement notices or Court action that has been taken in relation to them, it was not submitted by the Crown that his traffic record reflected what was described in Veen (No 2) by the High Court in 1988 as a "continuing disobedience of the law", such as to be relevant in that context of this sentencing exercise. As it is, as his counsel pointed out, excessive speed is not a contributing factor to the circumstances of the relevant impact.
I sentence the prisoner on the basis that he does not have a significant criminal or traffic record and in conjunction with the character evidence, which I will summarise later, he was at the time of the impact a person of prior good character, having regard to the relevant terms of the subparagraph in section 21A(3) Crimes (Sentencing Procedure) Act 1999 which I will hereinafter refer to as "the Act". In this context, and having regard to the background of the prisoner and the character of the offending I conclude that he is a person who is unlikely to reoffend pursuant to the relevant subparagraph in s 21A(3) of the Act.
I am informed a matter about which I will clarify shortly in evidence before me, the prisoner has not driven since June 2019, his licence being suspended since the impact.
The Crown case on sentence, apart from the usual material provided such as any relevant criminal history and traffic record in a case such as this, included a number of victim impact statements from members of the family of the two deceased persons. There were victim impact statements from each of the sons of Mr Cerezo and there were victim impact statements in relation to Ms Camilleri, both from persons who related directly to Mr Cerezo and from Ms Camilleri's mother. Steven Cerezo read his victim impact statement and the sister of Ms Camilleri, as I understand it, read the statement on behalf of the mother of the deceased.
The grief of the members of the family was palpable in the documents provided to me and in their rendering in this Court. Their grief and shock at the manner of the death of their loved ones is obviously a significant matter for them and it is a significant matter that exists in this sentencing exercise.
Of course the issue of harm to third parties in dangerous driving cases arising from evidence contained within victim impact statements is governed by principles set out in decisions such as R v Previtera (1997) 94 A Crim R 76 and SBF v Regina [2009] NSWCCA 231, particularly at [90].
The statutory provisions and the Caselaw do not permit a conclusion that an aggravating factor arises in the circumstances of death causing substantial emotional harm to the family of the victims, R v Berg [2004] NSWCCA 300 at [42]. There were no "additional aggravating factors" identified arising under s 21A(2) of the Act in the Crown's case beyond those of course concerned with the elements of the charges proven by the prosecution and matters that arise from the guideline judgment to which I will refer shortly.
With regard to the victim impact statements, if I could return to them for a moment, they universally express very articulately the extreme grief of each member of the family and other members of the family affected by the suddenness and the character of the death. They outline the considerable emotional pain caused by these deaths and the disruption to the lives of family members. The victim impact statements largely concerned with Mr Cerezo did reflect upon the very close relationship with Mr Cerezo and Ms Camilleri over more than two decades. The mother of Ms Camilleri spoke of her great pain and sadness at the loss of her daughter and the impact upon her. She was present in Court when that victim impact statement was read and I have had very close regard to that material. A particular matter that affected everybody, obviously a common occurrence in cases of this type, is that the character of the events provided no opportunity for farewell to loved ones.
There is a Sentencing Assessment Report from Community Corrections and an independent report relating to the prisoner's circumstances. That report noted that the prisoner was stable in all aspects of his life, residing in a semi‑rural community in the mid North Coast, approximately 20 minutes drive from the town of Taree.
He has two adult children living with him as I understand it. One of them is a 24 year old man who is highly disabled. The prisoner is the ful-ltime carer of this young man and has been for over four years since the death of his wife due to complications from cancer.
The prisoner is a saddler by trade but also is involved in a property maintenance business. He is supported by a self-managed National Disability Insurance Scheme (NDIS) plan for his son, which allows access to all relevant services in addition to accessing disability support workers to provide him with a realistic and achievable work balance. As I pointed out in relation to the facts, the prisoner was only driving on the Motorway this particular day to have some respite from the care of his son. The details of the care of the son I will come back to shortly.
The prisoner's wife of 30 years died four years before these events as a result of septicaemia in the course of treatment for breast cancer and that caused the prisoner to be sole carer of his son. The prisoner has been self-employed for over 30 years.
To the Community Corrections officer he expressed his "devastation" in respect of the current offences, the feelings of sadness and the difficulty he has putting his feelings into words. He told the Community Corrections Officer that he "constantly" reflected upon his movements and actions leading up to the relevant impact and appeared to the officer to take "full responsibility".
I appreciate of course that he pleaded not guilty to the charges in the indictment. But in my view, in the context of the availability of other charges such as negligent driving causing death, the issues that were raised out of his interview and from the objective facts were fairly to be determined by a jury and not a plea of guilty by the prisoner. The pleas entered by the prisoner are not inconsistent with taking responsibility for his conduct.
The prisoner presented to the Community Corrections Officer with a "sound understanding" of his offending behaviour and its impact upon the victims and their families. He appeared genuine in his emotions expressed during discussion and verbalised his ability to relate to the feelings of grief and loss having regard to his own loss of is wife.
He worried about the welfare of his son, particularly his disabled son. He had had no previous involvement with Community Corrections or the Probation and Parole Service, and was not unreasonably considered a "low risk" of re-offending. He was suitable to undertake any community service work if an order of the Court required it.
These conclusions support the effect of the evidence of the prisoner in his affidavit which was filed in Court and not subject to cross-examination. That affidavit sets out his background and employment and his family situation is very detailed. I need not quote it in detail beyond recognising the prisoner has been in regular employment since leaving school in a range of ways but largely in relation to making leather produces in respect of the industry of saddlery.
Two of his sons, the two elder sons, are employed. As I understand it the eldest son who is aged 30 has his own family. The middle son, aged 27, resides with the prisoner. The youngest son to whom I referred to earlier requires "24 hour care" because of his disabilities. I accept from the evidence within the affidavit of the prisoner that although he has been in regular employment throughout his adult life, full-time care of his son has disrupted this. He supplements his income with property maintenance work.
He believes that one of the factors that may have precipitated his wife's death was the burden upon her of caring for their disabled son. In his affidavit, as he said to the Community Corrections Officer, he expressed his regret and contrition, which I accept to be genuine. He noted that the amount of traffic in which he was driving was unusual in his experience and that he felt "totally uncomfortable" driving in that area, a matter upon which I commented earlier. He asserts that he was unaware, as I mentioned in passing, that two people had died until he was actually spoken to by police a few hours later back at the Wollongong Police station, having been taken to the hospital for mandatory drug and alcohol testing.
He had sought some counselling after the collision to deal with the emotional affect upon him but that has been somewhat disrupted by COVID-19 restrictions.
His affidavit contains a great deal of detail about the treatment and care of his disabled son. I had full regard to that. Many of the matters contained within his affidavit are supported and evidenced from an occupational therapist and an Administrator for the National Disability Insurance Scheme.
The son was born with "Angelman syndrome". This is a genetic disorder which caused developmental problems with speech and balance. He has intellectual disability and sometimes seizures. Although 24 years of age the son has the capacity of a 5 year old child.
He is "non-verbal" and whilst mobile, he walks minimally. Because of the considerable difficulty in doing that he prefers to crawl. At one point earlier in his life he was completely wheelchair bound, but intensive support from the prisoner and his wife enabled him to have some mobility, assisted by quarterly Botox injections for muscle relaxation to maintain that mobility.
He has a strict routine of weekly physiotherapy, daily physical exercise and weekly swimming lessons, all designed to assist him to become more independent. He is incontinent. As I mentioned earlier the prisoner and his son live in a small rural village close to Taree. They have little or no other informal support by way of family and friends who live nearby, apart from of course the middle son. The middle son would be a suitable nominee to make decisions regarding Joel, the youngest son, if the prisoner is to be imprisoned. But he does not have the requisite skills and experience to manage his physical care and well-being.
The son receives a funding package of approximately $205,000 per year to cover the cost of looking after him, despite the prisoner being his full-time carer. This includes part time support hours, respite assistance, consumables including incontinence products, health services, occupational therapy, physiotherapy and other support and transport needs. I was advised that if the prisoner was in prison the cost of caring for him, if a package can be provided, would rise to an excess of $450,000 per year.
His counsel summed up the evidentiary situation, having read the evidence after the submissions, I thought, quite accurately. He submitted that the circumstances of the son's care were bureaucratic and difficult. The prisoner had much responsibility for personally arranging services and arranging service providers. If he is not there to provide those services the current arraignments will end and no fresh arrangements could be made until emergency arrangements are put in place. This would need to be done, in fact, today.
If he is not able to care for his son, some form of full-time accommodation will need to be found. But he will not receive the level of care that he receives from his father and it was submitted in this context this was a quite "exceptional case", a matter which the Crown accepted in submissions. I will come back to those submissions shortly.
The son receives formal support from outside services eight hours per day, three days a week, and also funded support for six hours per day on three other days during which the prisoner works. As I say, the current NDIS funding would not be sufficient to replace the prisoner's role and the son would need to be placed in emergency respite if the prisoner was imprisoned. Thus the son requires what was described in one of the documents "24/7 high complex care" and emergency arrangements will need to be made today.
The Administrator in her report said that the prisoner and his son have a "remarkable bond" and the prisoner's presence is a source of "security and reassurance for him", the disabled son relying upon the prisoner for all aspects of daily life.
The occupational therapist's report has a great deal of detail about the son's mobility and disabilities that I need not expand upon. To sum up the situation the occupational therapist said that the son was "fully dependent for all self-care domestic and community activities" upon his father and as is self‑evident, required "constant supervision, care and assistance".
With regard to the character evidence produced in various references, the people, apart from the immediate family of the prisoner, represented a cross-section of people that have known the prisoner over a long period of time. One person is a former partner of the prisoner it seems from a relationship before his marriage, who continues to maintain friendship and support for him. Another referee was a retired police sergeant with 36 years' service in the New South Wales Police Force.
All the referees confirm the prisoner's devotion to his family, his generally sensible behaviour, the absence of risk taking in his normal manner. He was described by one character witness as "cautious and sensible" as a driver.
He has made many sacrifices for his family over the years, particularly in the context of his wife's illness with cancer and then her death and the needs of his disabled son. He was a constant support to his wife when she was alive but her caring for her disabled son, obviously took its toll.
A former business associate describes the prisoner as generally quiet, not an "overly social person" who was "very laid back and mild mannered". He is generous to friends and neighbours.
Mr Holder, a former police officer, who retired as a police officer in December 2012, had known the prisoner for some 17 years. They developed a friendship out of the prisoner making leather products for him. He was not only shocked at the news of the collision and the circumstances and consequences, but he noted the prisoner's remorse and deep sorrow for what had occurred shortly after the incident. He described the prisoner as "a genuine person who worries about people and would never do anything that would hurt any person". By that, he meant deliberately.
Each of the referees who are not family members spoke of the prisoner's expressions of regret for the consequences of his conduct and causing harm for others and they were universal in indicating that this was completely foreign to his nature.
His two sons, Clint and Cody provided references confirming the prisoner's value as a parent, and as a grandparent in the case of the son Clint, and the devotion to their brother and the improvements in their brother with their father's intensive support. One of the sons rated the father's care on the road from the time that he first started giving driving instructions to that son, the prisoner's caution in teaching that son to drive, and the profound effect upon him, that is the prisoner, of the consequences of this particular incident with which I am concerned.
The younger son speaks of his father's distress after the impact, which he says is unusual for him because he usually was not a person to show his emotions. As I earlier noted, the prisoner has had his licence suspended since the impact and his younger son who lives with him has been driving his father around when he is in need of transport.
He is an eyewitness to the very intense care that the prisoner gives to his youngest son. He also noted the prisoner's extreme patience with that son. He stated that he does not believe that he himself would be able to look after his brother in the absence of his father.
He noted the hardships in his father's life and the fact that the prisoner was "unable to put aside" the consequences of his conduct the subject of his charges. These consequences have had "a profound impact" and he never had any expectation that his decisions on that road on that day would cause the grief that had been caused.
I had very helpful written submissions from learned counsel for the prisoner and very helpful oral submissions supplementing those, as well as very helpful oral submissions from the learned Crown Prosecutor. There seemed to be little in dispute, except matters of perhaps some fine detail.
I have submissions in relation to the objective seriousness and the culpability of the prisoner by reference to the decision of Whyte a decision of the Court of Criminal Appeal from a Crown appeal ([2002] NSWCCA 343). I will refer to that judgment shortly. That judgment was a "guideline judgment" in relation to sentencing for offences of this type in the context of the maximum penalty of the 10 years imprisonment for an offence that was absent statutory circumstances of aggravation.
It followed up an earlier decision, the very first guideline judgment in New South Wales in 1998, of Jurisic. This was necessary because of reference in the earlier guideline to the expression "abandonment of responsibility". I will come back to that.
The learned Chief Justice I should point out, as was helpfully submitted by Mr Brasch, identified the "usual characteristics" of cases of this type, to the extent that there are "usual characteristics". But most notably identified what could be "aggravating factors" for an offence contrary to s 52A, established from the authorities, to which I will refer shortly.
Chief Justice Spigelman said, at [228]:
"In the above list of aggravating factors...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 has abandoned responsibility for his or her own conduct. That is not the only way of expressing such a conclusion".
The particular aggravating factors I might point out by reference to the Chief Justice's judgment, were; the extent and nature of injuries inflicted, the number of people put at risk, the degree of speed, the degree of intoxication or substance abuse, erratic or aggressive driving, competitive driving or showing off, length of the journey during which others were exposed to risk, ignoring of warnings, escaping police pursuit, degree of sleep deprivation, failing to stop.
It can be seen just by listing them, characteristics of driving that would cause consternation to any other road user, and nearly all of those circumstances of aggravation are absent here. Interestingly, Whyte was a case involving a person causing the death of another person with a very high blood alcohol reading.
In any event, Mr Brasch took me to a decision of Whelan [2012] NSWCCA 147, particularly at [4] in the judgment of President Allsop, now the Chief Justice of the Federal Court which I note. He made various submissions in relation to the facts, some of those matters the Crown took issue with and particularly in relation to the submission at para 12, that the prisoner anticipated that it was safe to change from lane one to two, but that "at the time that he indicated" he was changing lanes when it was no longer safe to do so. It was submitted by Mr Brasch the critical matter in his submission that this was a misjudgement of a "momentary nature".
There are submissions made at para 13 of the written submissions in relation to the issue of causation, that is concerning the conduct of the Isuzu truck. It must be fairly said, noting as I did in the absence of the jury, aspects of that particular evidence, were not explored. Bearing in mind that there was no cross-examination of substance of Mr Masi at the trial. It was submitted that the offender's moral culpability was at the low end of the continuum of criminality.
So far as subjective circumstances are concerned, it was submitted that the prisoner was genuinely remorseful and contrite and this emerged as a mitigating factor under s 21A(3) of the Act. He cited a deal of evidence on that. I accept that submission. Not just by reference to the character reference and statements in relation to remorse, but having regard to the Sentencing Assessment Report and independent report, as I mentioned earlier, and having regard to the contemporaneous statements of the prisoner once he realised people had been killed.
I accept the submissions set out in detail made in relation to the prisoner's criminal history, the relevance of his driving history, that the prisoner was a person of good character. I accept as a mitigating factor that he is unlikely to re-offend and obviously has good prospects of rehabilitation.
I have had close regard to his personal circumstances which I have summarised and particularly the hardship to his son. There is what the Crown notes in the authorities, the need to take into account the effect of a term of imprisonment on third parties when there exist in the case, "highly exceptional circumstances", citing the well-known decision of Edwards (1996) 90 A Crim R 510. He also cites the decision of Stumbles v R [2006] NSWCCA 418, particularly at [32]. I am aware of those authorities and I have taken that material into account. The Crown in its submissions have accepted exceptional circumstances, or "highly exceptional circumstances", that befall the prisoner's position, particularly having regard to his care of his son. I accept that is so.
The final part of the written submissions of counsel for the prisoner is that the offending falls at the "low end of the continuum", that ordinarily an offence or offences involving the death of two people would inevitably lead to the imposition of a full-time custodial sentence but having regard to the exceptional character of the evidence relating to the care of the son, and other aspects of the case in combination, I should draw back from imposing a full-time custodial sentence, I should consider if a term of imprisonment is required having regard to s 5 of the Act, which I take into account of course, I could impose terms of imprisonment to be served by way of Intensive Corrections Order. If I impose a term of imprisonment or terms of imprisonment that were required to be served full-time, I should make a finding of special circumstances pursuant to s 44 of the Act.
The oral submissions of learned counsel for the prisoner picking up the main points from his written submissions and the evidence directed their attention to the issue of remorse, moral culpability, describing the error of judgment as "momentary".
The Crown's oral submissions were succinct and to the point. It was conceded this is not a case of abandonment of responsibility but the Crown did not accept that it was at the lowest end of the scale, if that in fact was what had been submitted by Mr Brasch. He submitted by reference to the observations of Chief Justice Spigelman in Whyte, that this was not a case of "mere momentary inattention or misjudgement". That is momentary inattention or misjudgement over a couple of seconds. True it was it was an offence that had its genesis and its commission over a relatively short period of time, probably less than a minute, but it was not "momentary".
One has to have regard, not only to the period of time, but the fact that the prisoner was trying to get in front of a sizeable truck, which I have referred to earlier. The learned Crown Prosecutor submitted that the offending could be characterised as a "brief period of reckless misjudgement". I agree with that analysis. It had to be borne in mind that a changing of lanes occurred on a busy highway.
Another aspect of the matter to be taken into account in the Crown's submissions relevant to the fixing of an appropriate penalty was the issue of totality, which I accept is so. I will come back to that matter shortly. The Crown accepted as I said what was generally submitted about the hardship to the prisoner's son, however ultimately it was submitted when one takes into account the fact that two deaths were caused, the objective seriousness of the offending in total inhibited the impact of the subject case and required immediate imprisonment. Ultimately I accept that this is so.
The Crown submitted that the prisoner did not shown "immediate remorse". I do not accept that submission. I have already pointed out the full horror of what had occurred behind the B-double was not apparent to the prisoner and he was unaware of the deaths until he was told by police at a later time. He then expressed his regret and the effect upon him of that occurrence when given an opportunity to do so in the interview. The Crown generally accepted what had been put about the prisoner's character and the like.
With regard to the sentencing of an offender for this type of offence, I made a point to people in Court on the occasion that the matter was before me last Friday, and I repeat this, that in fixing a sentence for a matter involving the death of person or persons, particularly in cases such as this, the sentence imposed in no way reflects ether the measure of the value of the relevantly deceased person or the horror, grief or even anger of those affected by that death and the circumstances of that death.
It should be borne in mind when one considers all the laws that relate to actions that cause death that the maximum penalty fixed by the legislature in relation to the causing of death in circumstances such as here is, apart from the offence of negligent driving causing death is the lowest maximum penalty available within the criminal law rubric. Deaths caused by manslaughter and of course by murder, carry far more significant maximum sentences.
As I noted last Friday there are many different circumstances in which people are held to be criminally liable for the crime that does harm to other persons. In fact the legislature has decreed that there are degrees of severity of penalty to be imposed for conduct leading to the death of others by driving in a manner dangerous, where for example there are circumstances of aggravation such as ingestion of drugs or alcohol, which do not apply here.
The legislative scheme of penalties in relation to events where the deaths of others are caused are usually measured by regard to the intention of the person causing the death. If there had been no relevant intention required in proven, such as required in relation to murder, it may be a matter measured by the degree of foresight of consequences. In the case of driving in a manner dangerous foresight of consequences is not a relevant consideration. This is where that expression that I referred to earlier, cited by both counsel and their submissions of "moral culpability" has a significant role to play in sentencing.
For the purposes of this matter I accept, as with all sentencing exercises, I am required to give close consideration to s 3A of the Act. All the purposes of sentencing have relevance here; making the prisoner accountable, giving proper weight to general and personal deterrence, recognising the harm done to the victims, promoting the rehabilitation of the prisoner and other matters arising out of that section.
The assessment of the objective characteristics and the subjective matters that arise in the case require consideration of s 21A of the Act, and I have referred to aspects of that in the course of the judgment. There are no relevant aggravating factors under s 21A(2) independent of the objective facts.
With regard to mitigating factors that I am obliged to have regard to in fixing the appropriate sentence, I accept that the offences were not part of planned or organised criminal activity, the prisoner did not have any record or any significant record of previous convictions, the prisoner was a person of good character, he is unlikely to re-offend, he has good prospects of rehabilitation, he has relevantly shown remorse in regard to this particular matter.
In this particular matter there is no doubt that the prisoner did not foresee the consequences of his conduct that the collision which was ultimately caused between his vehicle and the B-double truck would ultimately lead to the impact in the circumstances that occurred behind the B-double truck.
There is other authority by which I am bound to which I have already referred. These are decisions of Courts superior to mine that set out matters relevant to assessing the objective seriousness of offences committed in this context. When I use the words "in this context" I am referring to the character of the offending required to establish the offence of driving in a manner dangerous.
I am mindful of the fact that there are two offences. That is relevant to the assessment of the totality of the criminality, bearing in mind the two offences arise out of the one course of conduct, not separate actions of the prisoner. In that regard, in dangerous driving cases, there is the observations of Acting Justice Hunt in R v Janceski, [2005] NSWCCA 288, where his Honour pointed out that:
"Separate sentences should usually be fixed which are made partly concurrent and partly cumulative, each such sentence being appropriate to the existence of only one victim and the aggregate of the sentences reflecting the fact that there are multiple victims resulting from the same action by the offender".
In the decision a year later of R v Richards [2006] NSWCCA 262 at [78] it was held in that case, that the failure to "accumulate" sentences "at least partially...appears to have been a failure to acknowledge the harm done to the individual victims". But, of course, one has to have regard to the deaths arising out of the one act of the prisoner.
With regards to the issue of totality, and particularly partial accumulation and concurrency, I note what was said by the Court in R v Hammoud (2008) 118 A Crim R particularly at [7] and what was said by the High Court in the majority judgment in a conviction appeal of Pearce v R (1988) 194 CLR 610, particularly at [45]. Their Honours were careful to point out, for reasons I will not go into here, that:
"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation as well as questions of totality".
When one speaks of totality one brings to mind authorities such as Mill v R (1988) 166 CLR 59, Johnson v R (2004) 78 ALJR 216 and in the Court of Criminal Appeal decisions such as Jimmy from 2010 where Campbell JA, Rothman and Howie JJ were in agreement. In R v XX (2009) 195 A Crim R 38, particularly at [52] Hall J set out 11 points to be considered in determining the issue of concurrency and accumulation of sentences in the context of totality of sentencing.
One of those matters that he identified was this, (at point 4):
"In applying the principle of totality, the question to be posed is whether the sentence for one offence can comprehend and reflect the criminality of the other offence".
Another authority in that regard is R v MMK [2006] 164 A Crim R 481, particularly at [11] and [13].
I come back to the guideline judgment to which I referred earlier and is cited in detail in the submissions of Mr Brasch. I noted that the first guideline judgment in this State in 1998 following up on English practice was R v Jurisic in relation to the same offending, dangerous driving causing death or grievous bodily harm. The decision of Whyte still applies 19 years after its determination.
That judgment binds this Court in assessing important relevant factors to the objective seriousness of the offending. It is not the consequence of the relevant conduct of itself, accepting that the killing of another person is a serious consequence, but the "moral culpability" of the offender for that consequence which is critical to the assessment of the objective seriousness of the offending.
The moral culpability of an offender is, by reason of the guideline judgment, to be assessed by relationship to the factors which usually arise in a case such as this and the relationship to other factors described in the guideline judgment as "aggravating factors" to which I referred earlier. It is to be borne in mind of course that one should not double dip where aggravating factors arise that may be contemplated under s 21A(2) of the Act.
The frequently occurring case under the relevant provision involves a young offender of good character with no or limited prior convictions causing death or permanent injury to a single person where the victim is a stranger with no or limited injury to the driver, genuine remorse, and a plea of guilty of limited and utilitarian value.
Two substantial differences between the typical case and this prisoner arise from those matters identified in Whyte. First of all, there is no plea of guilty, the conduct of the prisoner caused two deaths and the prisoner is not a young offender. Then again, as an older man he has a greater depth of good character, to which I have referred, which arises as a mitigating factor under s 21A(3). I have already dealt with the issue of remorse.
The significance of the plea of guilty of limited utilitarian benefit in the context of any sentencing exercise is to recognise that in such circumstances, having regard for example the Thomson and Houlton, the guideline judgment from 1999, that at the time of Whyte a plea of guilty with a limited utilitarian value would require the fixing of a discount of approximately 10% upon the otherwise appropriate sentence. Of course no such discount can apply here.
The guideline judgment of Whyte held that a custodial sentence will usually be appropriate in the typical case unless the offender has a low level of moral culpability in the case of momentary inattention or misjudgement.
The moral culpability of the prisoner in this case is low in the sense of there are many circumstances that could arise that could greatly increase that moral culpability. But it is not at the lowest level and it is certainly, as I said earlier, not a case of "momentary inattention or misjudgement". The moral culpability has to be assessed in the context of what the Crown characterised as the criminality of the prisoner, but also by regard to all the other factors that I have identified from the circumstances of the driving.
The guideline judgment further reflected upon the presence of aggravating factors at [216] of the judgment that I have already set out. Given the short period of time over which the prisoner was driving in the manner dangerous, there are only two potential aggravating factors referred to in the judgment in my view. The first one, very intimately bound up in the totality issue, is of course the fact that there is more than one death. There were two deaths. Secondly, the issue of a number of people at risk. The prisoner had no passengers in his car and in terms of what he may have realised as a risk to anybody else, the only person potentially at risk from his perspective was the driver of the B-double truck. That having been said of course, clearly other people were ultimately at risk, as the deaths of the deceased made clear. Mr Masi was at risk because he came into collision and his vehicle was burnt and it was a busy Motorway.
There is absent aggravation in this matter that truly increases moral culpability in cases such as this. Such as degree of speed, intoxication or substance abuse, erratic driving, competitive driving or showing off, driving in a manner dangerous over an extended length of journey, ignoring warnings, escaping police pursuit, sleep deprivation and/or failing to stop after the collision. Not all aggravations are of equal seriousness.
In Whyte the guideline concluded that where the offender's moral culpability is high, for example by reference to the existence of aggravating factors, a fulltime custodial head sentence of less than three years in the case of death, and two years in the case of grievous bodily harm, that is factoring in of course a discount for the plea of guilty, would not generally be appropriate [229]. The Court held that in the case of a low level of moral culpability a lower sentence would of course be appropriate.
The guidelines that I must apply are themselves expressed in some degree of generality. That must be acknowledged. I am also aware that since the guideline judgment there has been amendment to the Act such as amendments to s 3A and introduction of s 5 of the Act.
The guideline, as has been said by wiser minds than mine, is not a "tramline". It is a guide in the context of a wide discretion to take into account a range of matters including matters such as "exceptional circumstances" of the effect of any order of the Court upon third parties, which I have done.
Of course there are exceptions to that situation that do not apply here. For example, an accused person who by reason such as his manner of driving is dangerous, causes grievous bodily harm to a child of his own, perhaps rendering the child a quadriplegic, the prisoner's conduct subsequently and the dependence of the child for his care, may not be as exceptional a circumstance as such that arises in this case, where the disability of the child is unrelated to the circumstance of the collision.
This case, coming back to the objective seriousness of it and the character of it, demonstrates what can be described as the very fine line that can exist in some cases between cases of driving in a manner dangerous causing death and negligent driving causing death.
I have concluded in the scheme of things, having regard to my assessment of the objective seriousness of the offending, by regard to the matters I am required to take into account in the guideline, that ultimately the aggregate sentence I should impose is three years.
I propose to impose an individual indicative sentence for two and a half years in the context of a maximum penalty of 10 years for the worst case for the worst offender for each of the offences.
The circumstances of the prisoner's son and other subjective matters obviously are relevant to the assessment of that sentence. They are of particular importance in my view ultimately to the conclusion I reach that there are 'special circumstances' pursuant to s 44 of the Act and there should be a significant adjustment of the relationship of the non-parole period to the balance of the sentence. First of all, to assist the prisoner with professional guidance to adjust to community living and also to provide opportunity for the prisoner, bearing in mind he is serving his first term of imprisonment, to be released into custody to resume the care of his child in circumstances which would be of assistance, not just to the public purse, but more importantly to the care and welfare of that child who has responded so positively to the care that he has given to the child over many years, particularly since his wife has died.
In relation to the two offences Counts 1 and 2, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999, I fix an aggregate sentence of three years imprisonment commencing on 19 February 2021 expiring on 18 February 2024.
I have backdated the sentence to last Friday. I know you've been on bail since then but you've been required to come back and forth to Sydney. Ordinarily with more time I may have been able to sentence you last Friday. I propose to date the sentence from that date bearing in mind the restrictions upon you of bail and the like since you were charged in relation to this matter.
In respect of that aggregate sentence I fix a non-parole period of 12 months' imprisonment expiring on 18 February 2022.
The indicative sentences I impose in respect of each count are two and a half years imprisonment. In relation to the two related offences on the s 166 certificate, that is H73414082, sequences 3 and 4, the Crown withdraws those charges and they are dismissed.
This brings me, Mr Crown and Mr Brasch, to the issue of disqualification. My understanding, Mr Crown, is - we didn't discuss this at all, I'm not criticising anyone, we didn't turn our minds to it, I'm at fault as much as anyone else, the prisoner has not driven since June 2019, is that right?
SCULLY: That's so and the Crown accepts that a period of disqualification could properly be backdated to that date.
HIS HONOUR: No, I don't think I can. I don't do much appeal work from the Local Court but when I go to country centres like Wagga and Albury and I get PCA appeals and people have been suspended my memory is that the relevant provision which was the subject of some judicial determination some years ago by different judges, doesn't lead to backdating of the disqualification, but what I was proposing to do was to fix a 12 month period of disqualification from today, taking into account that period of suspension since June 2019.
SCULLY: Yes, your Honour, and just to be - there's a provision which provides that the period of disqualification won't run while the offender is in custody otherwise it is not intending that it run while he's in custody.
HIS HONOUR: Yes, I understand that. That's a matter for that motor transport office but I'm aware of that, I factor that matter in.
SCULLY: There's no difficulty with that from the Crown's perspective, your Honour.
HIS HONOUR: Anything from you, Mr Brasch?
BRASCH: If your Honour's come to a conclusion about that I would--
HIS HONOUR: I've come to a conclusion to the extent that I've articulated it. I've had a think about it since I last saw you last Friday but it wasn't a matter that we discussed last Friday.
BRASCH: It would have the effect that he would be disqualified from driving for 12 months after he was released. Perhaps a matter for your Honour really.
HIS HONOUR: There's a minimum period of disqualification I can fix.
BRASCH: There's a minimum period of 12 months, that's correct.
HIS HONOUR: That's exactly right. I can't fix a shorter period from today.
BRASCH: Your Honour I take it is required to take into account the period of which he has already been disqualified. So if your Honour's intending to impose the minimum period--
HIS HONOUR: No, I'm proposing to impose the minimum period having regard to the period of time he's suspended in the knowledge that that period of disqualification will commence when he's released.
BRASCH: In that sense your Honour is taking into account what he has already served and is effectively disqualifying him then for a period of two years and 20-odd days, 20 whatever days.
HIS HONOUR: It's longer than that, it's three years seven months, because it starts running when he released from prison.
BRASCH: Yes, I understand that.
HIS HONOUR: I'm mindful of all of that.
BRASCH: Yes, okay. I can't put it any--
HIS HONOUR: The legislation won't permit me to backdate the period of disqualification in light of the suspension. In fact I can't, because it's got to run from the time that his non-parole period expires.
BRASCH: That's right, yes.
HIS HONOUR: So this is one of the consequences of matters - I'm not criticising anyone, this matter hasn't been slow to get to Court, to be fair. I know it's been an agony for the family of the deceased and no doubt for the prisoner too in a range of ways. But the truth of the matter is the quicker things get to Court where a person is going to be sentenced, the quicker relevant periods can come into effect so that they can expire earlier.
BRASCH: Yes, part of the delay of course was the circumstance last year with jury trials and COVID but if that's what your Honour is going to impose, I can't put anything against that.
HIS HONOUR: Yes, got two classes of licence anyway.
BRASCH: I hadn't--
HIS HONOUR: So I understand it. But nobody's addressed it, I'm not criticising anyone, I'm just saying it's a practical problem I've got to address.
BRASCH: Understand.
HIS HONOUR: Mr Squires, you are disqualified from holding a motor vehicle drivers' licence for a period of 12 months concurrently for each offence, do you understand that? That will start running when you are released from prison because disqualifications are not allowed to run while a person is in custody. There must be an effective disqualification.
As I have discussed with your counsel, I cannot see that I can impose a lesser period of disqualification, but I have taken into account the period of time you were suspended. I have taken into account the period of time contemplated by your imprisonment.
[2]
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Decision last updated: 25 May 2021