R v Thornton

Mobile Phone Activity

1. Examinations were subsequently carried out on the mobile phone belonging to the Offender. These examinations showed a messenger exchange between the Offender and his girlfriend between 7:08pm and the time of the accident. The agreed facts record that between 7:45pm and the time of the accident the Offender had sent 29 messages.
2. Copies of the messages were tendered. [1] The time at which these messages were sent is not apparent beyond sometime after 7:45pm. It is apparent from the content of the messages however, that the Offender had finished work at around 7:45pm and thereafter a journey was undertaken from the office at Kirrawee to the collision sight at a time around 8:22pm. Recorded as being after 7.45pm and before 8.40 pm, were five of the messages sent by the Offender relating to seeing his girlfriend that night and there were five responses.
3. The Court also has before it some group chat messages. The time of those messages is not apparent, but it was accepted that they were received prior to 8:16pm on the day of the collision.

Witnesses

1. A female driver who was driving along the Hume Highway in the left lane just prior to the accident noticed the Offender's vehicle in front of her. It was her observation that the vehicle was travelling slow. She remained behind the vehicle, but became frustrated because the vehicle was travelling slowly. She followed the Offender's vehicle as it turned onto Campbelltown Road. She observed the Offender's vehicle was still travelling slowly and was swerving from left to right within the lane. The distance from the Hume Highway exit to the intersection of Rose Payten Drive is approximately 1.5km.
2. The driver did not want to remain behind the Offender's vehicle and overtook him in Lane 2. She looked towards the car but could not see the driver inside. As she overtook his vehicle she saw the stationary highway patrol car up ahead in Lane 1. She estimated it to be 100 to 200 metres ahead. She later detailed that she could "easily see the police car ahead on the road", and as she approached she observed the boot of the vehicle open and a person leaning into the boot. She travelled past the scene just before the Offender hit the rear of the patrol car and the victims.
3. Another male driver who was travelling behind the Offender drove through the intersection at Rose Payten Drive. He stated that he could see the stationary police car ahead in Lane 1, and at first he thought it was a broken down vehicle. He estimates he first saw it when he was approximately 250 metres away. He merged into Lane 2 but stayed back so as to give the Offender room to also merge into Lane 2. As he continued to drive and the Offender remained in Lane 1, he was approximately 90 metres from the stationary police vehicle when he realised that it was a police vehicle and there were police officers standing around wearing high visibility vests. A few seconds later he realised the Offender was not moving and was going to collide with the police car. He observed the collision and saw that the Offender hit the two victims.
4. A second female driver was travelling behind the Offender along Campbelltown Road that night. She remained in Lane 1 behind the Offender. As soon as she turned off the Hume Highway and started travelling along Campbelltown Road she could see flashing blue lights ahead. She was behind the Offender when she saw his vehicle suddenly stop having hit the police car.
5. A number of witnesses around the scene recalled seeing the red and blue flashing lights at the RBT site prior to the collision.

Road Crash Examinations

1. Road crash investigators from the Metropolitan Crash Investigation Unit attended the scene of the accident that evening. They made a number of observations. There were orange-hued street lights in the area in which they were operating. One of the lights directly about the collision was not illuminated. Despite this, police examining the scene were easily able to distinguish vehicles and persons on the roadway without the use of a torch or assisted lighting.
2. The highway patrol vehicle was examined. The collision damage was observed to be concentrated around the rear bumper. The muffler had been bent downwards and the boot pushed forwards causing a hole in the boot. The bonnet of the Fiat had been pushed backwards and the panels were crumpled and creased. There were tyre marks on the roadway which appeared to stop under the rear wheels of the Fiat. In the driver side foot well of the Fiat police, located the Offender's Apple IPhone.

Injuries to Senior Constable Matthew Foley

1. Senior Constable Foley was transported to Liverpool Hospital and required immediate surgery to his right leg. Due to the extent of the damage a titanium rod was inserted from his knee to his ankle. It was fixed with pins and screws. The titanium rod is to remain permanently in his leg. He also suffered a number of puncture wounds which were cleaned and stitched.
2. He required a second surgery the following week to remove pins and screws and to allow his ankle to be re-set. Further pins and screws were inserted. He suffered permanent scarring to his right leg, left thigh and left arm and a deformity to his left index finger.
3. In the months after the accident, he was undertaking physical therapy appointments three times a week, as well as attending psychological appointments. As at August 2018, he suffers daily aches, pains to his lower right leg, knee and ankle, and constant swelling. He suffers reduced movement to his ankle and is unable to kneel, run or cause impact to his leg. The scarring remains visible. He also suffers reduced movement to his left index finger and is unable to make a closed fist.
4. He has since returned to work on restricted duties a few days a week for a few hours at a time. He is now undertaking desk duties and paperwork. He can no longer drive a police car or interact with the public.

Injuries to Senior Constable Jonathan Wright

1. Senior Constable Wright suffered a traumatic injury to his right leg resulting in a large amount of blood loss. He was transported to Liverpool Hospital and required a blood transfusion on arrival.
2. As a result of the extensive damage, it was not possible to salvage the limb. He underwent surgery that night and a below knee amputation was performed. His right foot and leg was amputated from 15cm up his leg. A debridement was carried out on his leg.
3. He further suffered a dislocated right knee and torn ligaments.
4. After the initial amputation, Senior Constable Wright suffered extreme ongoing phantom limb pain in his right leg with associated cramping, spasms and muscle tightness in his right thigh and hamstring. He underwent further surgery on 19 February 2018 as the wound became contaminated. The removal of damaged tissue from his lower leg wound and external fixation to stabilise his right knee, was considered critical.
5. Following further examination on 27 February 2018, specialists agreed that his right knee was not likely to be fully functional. It was then determined that a through knee amputation was required.
6. Senior Constable Wright underwent further surgery on 2 March 2018 and the through knee amputation was performed. In hospital he continued to endure extreme pain and required ongoing trials of medication for pain management. He was discharged from Liverpool Hospital on 10 March 2018.
7. Upon discharge, he was heavily medicated which required him to be under 24 hour supervision. His wound had not healed and he required daily wound cleaning and dressing. He continued to suffer chronic phantom limb pain despite the medication. He had a comprehensive schedule of ongoing appointments which required him to meet with pain specialists, nurses, work cover doctors, an orthopaedic surgeon, psychologists, physiotherapists, remedial therapists and prosthetic specialists. He has since been fitted with a prosthetic leg.
8. Three months after the accident, Senior Constable Wright returned to work after being cleared to work 4 hours a week in office duties. As at 12 October 2018, his time at work conducting office duties had increased to 5 hours, three days per week.

Victim Impact Statements

1. The Court has also received victim impact statements from both Senior Constable Wright and Senior Constable Foley.
2. Senior Constable Wright describes that he was previously a very active person who completed the vast majority of home renovations and repairs, and yard improvements and maintenance, in addition to doing outdoor physically demanding activities with family and friends. He stated that he partook with his family to push his limits. As a consequence of his injuries, he feels incompetent to do any of these activities, as there is far too greater risk of further injury.
3. Prior to his injury, he would also regularly partake in beach activities with his family and mountain bike riding, which ceased after the collision. He states that whilst he has attempted to overcome his concerns, he has found it difficult and gruelling and he finds it exhausting to simply walk 25 to 30 metres on soft sand.
4. The injuries have impacted on the relationship between Senior Constable Wright and members of his family. Senior Constable Wright previously engaged in regular activities with his children but has now has come to rely more on his wife and family and friends to provide assistance. He stated that any outdoor activity results in physical pain and that his leg locks as he walks, jolting him forward and to the side, especially when he climbs stairs. As a consequence, he falls often, easily stumbles and stated that most of his showers are in a seated position because he has fallen numerous times on the bathroom floor. He finds it difficult to traverse even a simple path, as he has no flexion in his ankle, knee or hip of the right leg, and he has to watch where he steps. Several handrails have been installed around his home, as well as permanent supports in bathrooms. He has had to undergo a number of changes to accommodate living with a prosthetic limb.
5. Senior Constable Wright stated that because of the stress, both emotional and financial, due to his limited capabilities, an increased burden has been placed on his wife and he has had to reconsider having further children. His wife routinely takes him to appointments and took three months off work to assist him. Part of this is due to what he described as forgetting things due to a sudden inability to remember. He also stated that he fatigues quicker, is in constant pain, and is more easily distracted, such that his career opportunities have now been severely altered.
6. Senior Constable Matthew Foley described spending a week in hospital and having two surgeries on his leg. Thereafter he said he was at home not being able to do simple tasks such as walk, shower or drive. As a father of two young children aged 3 and 6 he described that impact the injuries have had on his interactions with them. He stated that his inability to work full duties affected his family financially. Apart from anything else his wife also had to take time off work to care for him. He requires the assistance of others to attend to regular round of appointments with various medical professionals.
7. Senior Constable Foley described that his life is one of constant pain and swelling. He describes ugly scarring to his arms and legs and suffers bouts of depression and has been diagnosed with PTSD. He fears a lifetime of ongoing pain and risk of early onset of depression. He described that his inability to be active has led to an increase in weight. Specifically he described restricted movement in his knee and ankle. He said he felt discomfort when on his feet for prolonged periods of time restricting being able to walk or stand comfortably to only a few hours. He said he has trouble and discomfort kneeling, and pain when getting up or down from the ground meaning the simples of tasks with his children and can become uncomfortable and painful.
8. He stated that he also had dreams associated with that night.
9. At the time of his injury Senior Constable Foley described embarking on a new challenge in the Traffic and Highway Patrol Command having been there for 6 months and was 3 days into the start of a highway course. He described the impact it has had on his professional career. Although he returned to work on restricted duties, he said he had a need for further surgery.
10. A victim impact statement is defined in s 26 of the Crimes (Sentencing Procedure) Act 1999 (NSW) [2] to contain particulars of "any personal harm suffered by the victim as a direct result of the offence." Personal harm is defined to mean, actual physical bodily harm or psychological or psychiatric harm. No objection was taken to the tender of either statement on this basis.
11. Both statements which I have relevantly sought to summarise provide a powerful reminder to the Court of the devastating effects that the events in question have had on those affected. Regrettably they are features that will have long term consequences for both Officers.
12. The Court receives and considers the two statements in the way provided for by law. [3]

The Victims were Police Officers

1. Although the Crown initially submitted that s 21A(2)(a) of the 1999 Act was engaged, [4] this was ultimately withdrawn. [5] Accordingly no submission was advanced that the Offences were aggravated by reason the victims being police officers exercising public functions and the offences arose because of the victims' occupation.
2. It is nevertheless part of the background to this matter that the victims at the time were performing a lawful function of setting up an RBT site of a kind which is commonly found in locations around the State from time to time.
3. In summary no aggravating factor under s 21A(2) of the 1999 Act was advanced and the matters referred to earlier concerned only the assessment of the seriousness within the scope of aggravating features referred to in R v Whyte. [6]

The Offender was not aware of the consequences of his actions

1. The Offender's counsel submitted that the Offender was not aware of the consequences of his actions due to his age or any disability pursuant to section 21A(3)(j) of the 1999 Act. This submission was not elaborated on.
2. The only matters referred to were the Offender's age of 22 years at the time of offending and the psychological report referring to underlying mental health issues. I will later in these reasons discuss the Offender's pre-existing depression. It suffices to state at this point that Mr Mark Benad, the Offender's treating psychologist, records: "At the time of the offending behaviour, [the Offender's] depression had resolved and does not appear relevant in relation to the matters which bring him before the Court… His decision to view his phone appears related to complacency and a minimisation of his behaviours as dangerous. He failed to consider the potentially life altering ramifications of his actions."
3. The Crown submitted that there was no evidence before the Court that the Offender was suffering a mental condition that was causative or connected to the relevant offending. [7] I accept this submission.
4. It follows that, the Defence submissions in this respect have not been made out.

Assessment

1. In R v Whyte Spigelman CJ identified the list of aggravating factors for such offending. [8] Of the listed factors going to moral culpability, the Crown relied on the length of the journey in which others were exposed to risk by reference to the Offender's associated inattentiveness. [9]
2. The Crown draws attention to the length of the journey along the Hume Highway when the Offender was attending to his mobile phone, and also that the Offender was looking at his phone for a distance of 300 metres from the intersection of Rose Payten Drive to where the collision occurred. The Crown submitted that the Offender's admissions in his interview with police, coupled with the timing and content of the messages, allow for a factual finding that the Offender was messaging and reading messages whilst travelling along the Hume Highway and this he admitted to prior to the accident. [10]
3. The Crown pointed to the obviousness of the RBT unit on the road in question, which was apparent from the photographs of the accident scene in Exhibit A, the video reconstruction in Exhibit A, and the evidence from the civilian witnesses referred to in the agreed facts.
4. Overall the Crown submitted that the case involved high moral culpability and an abandonment of responsibility.
5. The Offender's counsel accepted that if the Offender was found not to have looked at the roadway for 10 to 20 seconds (on Campbelltown Road) then that would amount to high moral culpability. [11]
6. A submission was made, however, that: "The Offender having been interviewed at 3:00am, in a state of shock, gave a detailed version of what occurred. He guessed that the time of inattention would be 20 seconds. Then, on immediate reflection, more like 10 seconds at a guess. He in hindsight believes it was more like 3 seconds when reflecting on the matter with the treating psychologist. However, regardless of whether it was 3 or 10 seconds, he accepts that he should have maintained a view at all times." [12]
7. This submission was a reference to a statement recorded by the Offender's treating psychologist Mr Benad, who noted: "I questioned him in relation to the comment in the Facts Sheet about viewing his phone for 10-20 seconds (which at 60km/h represents between 166-333m without viewing the road). He expressed the view that this objectively could not be accurate, and he again referenced a possible concussion at the time of giving his statement. He said it was more like 3 seconds. I questioned him regarding his views as to why he didn't see the Police vehicle. He mentioned that with the boot open on the Police vehicle, he couldn't see the warning lights. He also commented that the Police Officers stood at the rear of the vehicle which obscured the rear lights of the car."
8. The Defence submitted that it was open to the Court to find that the messages on the last page of the group chat were consistent with what the Offender told police, such that the three messages sent by him were those referred to as having been sent along the Hume Highway and that the message at 8:16 pm was probably what the Offender was viewing before the collision.
9. The Crown responded: Just in relation to the submissions initially about what your Honour would find with those messages, the Crown has included in the statement of facts the details of what this offender admitted to and that's contained on p 3. In relation to Rose Payten Drive, he admits to picking up his phone at that intersection and he said he saw messages from his girlfriend and he "read them for a little bit and by the time I looked up a police car was there". It has been suggested that the group messages, being the last page of messages, may fit with that. It doesn't even fit with his own admission and that's assuming what he admitted to was the totality of his actions, for a number of reasons. He said he saw messages. The group chat includes one message and that message is at 8.16. The emergency services are contacted immediately, which is detailed on p 2, and the police at the scene immediately requested urgent assistance and that request was made at 8.22. In the circumstances, it's hard to accept that where the accused admits to seeing his phone light up at the intersection, picking that phone up and reading it, then colliding with a car, it would take some five to six minutes for emergency services to put out a call. The material before the Court is that which was available to the Crown, his admissions, and evidence of what was on his phone. He does admit to messages on the highway and he does admit to looking at his phone from Rose Payten Drive, whatever he was doing, up until those few seconds and your Honour can make findings, despite the fact the Crown can't identify particularly which messages were sent at which time, but that group chat doesn't even fit with his own admissions nor the facts in this case. [13]
10. In the agreed facts, the Offender stated that he asked his girlfriend to come over "well before that [he was using his] phone when travelling down the highway." As I have already indicated the messages sent by the Offender on this subject are more extensive than what he estimated.
11. Bearing in mind the timing of the messages to the extent they can be deduced, their content, coupled with the Offender's own admissions particularly as to the purpose of his communications, I am satisfied beyond reasonable doubt that the Offender's phone activities on the Hume Highway were more extensive than as he estimated in his police interview where he described them as "Not many, um three maybe." I cannot however determine the precise number.
12. In the circumstances, I am satisfied that the Offender's preoccupation with use of his mobile phone in texting and reading extended to when he was on the Hume Highway and that this is part of the context of the offending.
13. The Offender's statements referable to events immediately prior to the collision, as recorded in Mr Benad's report, are at variance with the agreed facts.
14. The Offender also said that he picked up the phone when he was in line with the intersection at Rose Payten Drive and read messages from his girlfriend, and then by the time he looked up he was within 4 to 5 metres of the stationary police car. If in fact the phone did light up at 8:16 pm at the time the message "Probably will" on the group chat was received, then it is difficult to accept that with the distance left and the impending collision it would take until 8:22 pm for an emergency services call to be made as the agreed facts disclose. Beyond that the Offender stated that he was looking at "messages" from his girlfriend.
15. Consistent with the agreed facts, I am satisfied that the Offender's account of picking up his phone at the intersection of Rose Payten Drive and not looking until shortly before the collision accords with his admissions to police, his failure to make timely observations in the circumstances and the evidence of the other witnesses. Whilst both the Crown and the Defence disputed the actual time of inattentiveness, what cannot be disputed on the agreed facts is the distance travelled of 300 metres whilst the Offender was looking at his phone. Accepting the Offender's account that he was travelling at 60 km/h at the time, this would bring the period well within the Offender's estimate of between 10 and 20 seconds. [14] It follows that I do not accept the account referable to the Offender recorded in Mr Benad's report which the Defence sought to contend more accurately described what occurred.
16. The female driver who was following the Offender on the Hume Highway followed the vehicle as it turned into Campbelltown Road to the point where the Offender's slow speed and swerving from left to right within the lane was frustrating her. The distance from the Hume Highway to Rose Payten drive was described as approximately 1.5 km. The Offender's driving resulted in the female witness overtaking the Offender's vehicle, where upon she described she could "easily see" the police car ahead in Lane 1, estimating it to be 100 to 200 metres ahead.
17. The male driver travelling behind the Offender's vehicle observed that as he drove through the intersection with Rose Payten Drive, he could see the stationary vehicle ahead in Lane 1. He said he first saw it when he was 250 m away, and he then merged into Lane 1. When he was approximately 90 metres away, he said that he could see that it was a police vehicle.
18. A second female driver driving behind the Offender along Campbelltown Road said that she could see the flashing blue lights as soon as she started travelling along Campbelltown Road after turning from the Hume Highway.
19. Whilst I accept that one of the overhead lights proximate to the collision was off, and the light bar on the police vehicle was obstructed by the boot opening, the evidence satisfies me beyond reasonable doubt that the Offender was not looking from the intersection of Campbelltown Road and Rose Payton Drive until shortly before the collision. Had the Offender looked earlier, then it must be accepted that, as with other witnesses travelling at the time and as demonstrated in the video re-enactment and the road crash investigations acknowledged in the agreed facts, he would have made the pertinent observations that distinguished vehicles and persons on the roadway in time to avoid the collision. Apart from the police vehicle in lane 1, the agreed facts note that by 8.20 there were other police cars and a police RBT bus parked in the vicinity of the RBT on the left side of the road. However, it is not indicated that any lights from those vehicles were activated.
20. It follows that in terms of length of the journey where others were put at risk I accept that the context of the offending partly relates the time the Offender was otherwise preoccupied on his mobile phone on the Hume Highway, but more particularly along Campbelltown Road from the intersection of Rose Payten Drive, as I have earlier described. [15]
21. In all of the circumstances I am satisfied that the moral culpability in this case was high. Despite the Defence submissions to the contrary, this was not an instance of momentary inattention or misjudgement. Rather, it was an irresponsible abdication of responsibility for an extended period from someone who selfishly prioritised communications with his girlfriend disregarding the need for vigilance when driving a motor vehicle. Accordingly, I am satisfied beyond reasonable doubt that this collision had nothing to do with any obscurity of the victims but rather the inattentiveness of the Offender.
22. The extent of and nature of the injuries and the number of persons put at risk are also described as aggravating factors in R v Whyte. [16] These matters are focussed on the occurrence as opposed to the conduct of the Offender, but nevertheless go to the objective seriousness of offending. [17]
23. Although the evidence does not establish the number of other road users put at risk along the Hume Highway during the period the Offender was attending to his mobile phone, it can be accepted that it occurred on a major roadway, although it was night time and the traffic would have been relatively light. There is no evidence of the distance travelled or time occupied which might otherwise assist in determining the number of persons put at risk. Although there is evidence by one witness who was following the Offender on the approach to Campbelltown Road, the only observation made at that time was that the Offender was travelling slowly.
24. So far as position from Rose Payten Drive was concerned the traffic conditions were described as night traffic, which were very light and there were no residences or pedestrian traffic nearby on Campbelltown Road. What is apparent nonetheless is that apart from police presence earlier described, three other vehicles were travelling in proximity to the Offender and were able to make the observations described.
25. The substantial maiming of Senior Constable Wright involving the loss of his right lower leg constitutes a very serious and permanent disability and a grievous bodily harm of very high order. The fact that the injuries for Senior Constable Foley were not as grave and far reaching does not detract from the seriousness of those injuries.
26. The injuries sustained particularly by Senior Constable Wright but also by Senior Constable Foley, along with the other features I have referred to, combine to bring these instances of offending as very serious instances. [18]
27. Having said that, I do not however accept that the offences are individually aggravated or brought outside the typical features listed in R v Whyte [19] due to multiple victims being involved. Each offence involved a single victim. The fact that a single act led to offences to two victims is a matter to be addressed through principles of concurrency and accumulation, being matters that I will later come to. [20]

Background

1. The Offender is aged 23. He was raised by his biological parents in the Campbelltown district and is the eldest of three children, having a sister aged 21 and a brother aged 19. His parents separated in 2000 and his father committed suicide in 2010 when the Offender was 15 years of age. The Offender received psychological counselling when he was 16 years old due to the passing of his father. He received treatment for approximately 12 months, and during that time he was prescribed anti-depressant medication.
2. According to the report of Mr Benad, the Offender developed mood disturbance manifest in anger and he fought with his siblings and school-aged peers after the death of his father. Whilst he performed well in his school work, his grades dropped dramatically for around 2 years but picked up as he began to resolve his grief. He left school part way through Year 11 due to a desire to start an electrical apprenticeship. He did not complete this apprenticeship, and subsequently worked in sheet metal for 6 months while he decided what to do. He then worked for a family friend who ran a security company, and gained employment with AMR Security as a Security Technician. He completed a 12 month traineeship and acquired a Certificate III in Technical Security. He changed employers in 2017 to Element Security at Kirrawee. The company 'let him go' consequent to the offences the subject of these proceedings.
3. Following initial refusal of bail, the Offender was detained in remand custody for 7 weeks. After being granted bail, he commenced work with ECS International Security as a Cabler. In August 2018, he secured an electrical apprenticeship with ECS International Security. He continues to work with that organisation on a full time basis. His employer is aware of the offending and has organised a co-worker to complete all driving requirements.
4. The Offender is in a de-facto relationship with his partner Sara, with whom he currently resides in Bankstown.

Plea of Guilty

1. The Crown acknowledges that the plea was entered at the earliest opportunity and accordingly the Offender is to be afforded a plea discount of 25%. [21]

Good Character

1. A number of references have been provided to demonstrate the Offender's good character, including statements from Katja Thornton (the Offender's mother) , Blessing Mtiza (a work colleague), Jeff Bradford (former employer), Stefan Samlow (the Offender's uncle), Lutz and Eva-Marie Samlow (the Offender's grandparents), and Fr Thomas Thornton (the Offender's uncle).
2. The Crown accepted that the Offender was previously of good character, and I am satisfied that this has been established. [22]

Prior Driving Record

1. The Offender has no prior convictions. However, he does have a series of traffic antecedents. Although these are individually relatively less serious offences, their frequency culminated in suspension of the Offender's licence due to a loss of demerit points on 7 January 2014, 14 April 2015 and 25 October 2016 and 28 October 2017.
2. While the Crown accepted that the Offender's criminal history was an otherwise mitigating factor under s 21A(3)(e) of the 1999 Act, the Crown submitted that the Offender's traffic record was relevant to determining where the sentence would lie in the boundaries set by the objective seriousness of the offences. It was submitted that it was relevant to issues of personal and general deterrence, and indicated an attitude of disobedience towards road rules which required increased weight to be given to retribution and deterrence. [23]
3. The Crown argued that the circumstances of the Offender's traffic record distinguish him from the case of a young offender with good character with little or no prior convictions. It was submitted that this was relevant to the Court's determination of where the Offender's sentence would lie. [24]
4. The Defence noted that the Offender had no criminal convictions and stated that his "traffic antecedents are unremarkable". [25]
5. To have amassed such a number of traffic antecedents in a relatively short period of time, which resulted in suspensions and did not bring about any desire to change his driving behaviour, is of serious concern. Whilst I accept that the Offender has no previous convictions, I do not consider that he is entitled to be treated as a first time Offender. I accept that to an extent this is relevant to where the relevant sentences should lie. [26]
6. I am not satisfied however that it is necessary to give increased weight to personal deterrence for the purpose of sentencing. This is so particularly in light of the Crown's concession discussed below as to the Offender's good prospects of rehabilitation and low likelihood of reoffending. Beyond that I am satisfied that this offending has provided a salutary lesson to him, reflected in the matters that I discuss below.

Assistance to Law Enforcement Agencies

1. The Defence submitted that the Offender's statements to police were such that they entitled the Offender to discount, applying the principles in R v Ellis. [27] Specifically the Defence contended that this amounted to a disclosure of otherwise unknown guilt of an offence that warrants a significant added element of leniency. It contended that the majority of the Crown case is based on the Offender's admissions and without them, the allegations would have been very difficult for the Crown to prove. [28]
2. In oral submissions the Defence contended that without the Offender's admissions, police would not be able to say when he sent the relevant text messages, and whether he was stationary or driving at the time. It was argued that it was because of the admissions that the Offender was travelling and sent the texts that they can rely upon this evidence.
3. The Crown submitted that in circumstances where the Offender was proceeding along a road and ran up the back of a stationary vehicle, the Crown could well ground an offence of dangerous driving with or without access to the Offender's phone. It contended that police ultimately seized the phone and were able to review the messages on the phone and this is not a matter which would give rise to an Ellis discount. [29]
4. During argument it was pointed out that the Defence did not seek to make out a case referenced to the contents of s 23 of the 1999 Act. [30]
5. In Panetta v R, [31] Adams J, stated: [50] The very logic that accepts that sentences should be set to deter crime, by parity of reasoning, is set to deter persons who have committed crimes from voluntarily coming forward and admitting to them. The circumstances, of course, vary enormously. In some cases, the Offender will already be a suspect and may think that by coming forward their likely or inevitable conviction and sentence can be significantly discounted. Where, however, the crime itself is not suspected and unlikely in the extreme to be detected, different considerations arise. The only motivation in such a case, as here, appears to be the attempt to assuage serious feelings of guilt ...
6. The facts in this case are that the accident was seen by the Police. There is relevant evidence of messages and evidence of other witnesses who observed the Offender's driving. As such, it cannot be said that the offence could not have been discovered or prosecuted without the Offender's admissions. Although the Offender' statements were important in providing context, it is acknowledged that there was other evidence that the Crown could have relied upon to establish much of what occurred. The admissions to police did not amount to disclosure of unknown guilt. I have earlier dealt with the truthfulness, completeness and reliability of the Offender's account. The assistance was timely. No submission was advanced in terms of s 23(2) (f), (g) or (h).
7. Overall, I am of the view that the Offender's assistance is not such that it justifies the granting of a separate discount for assistance. However, it is a matter that I take into account in relation to factors of remorse and prospects of rehabilitation, as part of the instinctive synthesis.

Remorse

1. The Offender wrote a letter in custody, in which he expresses deep remorse for his actions. [32] In it he expresses concern for the victims, their families, and emergency service officers who attended.
2. The remorse was further reflected in a letter to the Court dated 19 November 2018. [33] That letter indicates that the Offender read the letter of Senior Constable Wright, describing how the injury has affected his life, and that he understands his life will never be the same again. He states: "My main regret is obviously concerning the injuries to the two officers, one of whom lost his lower leg. For the moment, all I can do is apologise and pray that they both recover as well as could be expected. I hope that with the support of their families and the community, they will still be able to live good lives. Causing that much damage for such a stupid mistake has weighed very heavily on myself and I am sure that it will follow me for the rest of my life. What I did was not worth the risk of affecting the lives of all involved and I truly hope that through my grave mistake, people can learn, so that all of the pain I caused was not for nothing."
3. In the report prepared by Mr Benad, it is recorded: "[The Offender] reported high levels of regret and remorse for his actions. He spoke of feeling "…so guilty and sorry". He feels ashamed that he has let himself and his family down. He feels guilty that he is putting his mother through all of this and he knows she is not coping." [34]
4. In conclusion, Mr Benad states: "Mr Thornton's expression of regret and remorse is genuine. His demonstration of sorrow has been consistent over more than six months of treatment. He has experienced significant anxiety associated with whether his apology letters have reached the Offenders involved as he wants them to know that he is terribly sorry for his actions." [35]
5. The Offender's mother, Katja Thornton, has written a letter to the Court in which she records, following his release from custody, the Offender has spoken to her about how he felt about causing severe injuries to the two victims, leaving them with lifelong injuries. Ms Thornton records discussions that she has had with the Offender about strategies aimed at preventing similar offences arising. [36]
6. Beyond this, the Offender cooperated with investigating police in the way described above and entered a plea of guilty at the earliest opportunity.
7. The Crown drew attention to the Offender seeking to minimise the circumstances of his offending (in Mr Benad's report) as relevant to his acceptance of responsibility. Nevertheless, it overall conceded that the Offender is remorseful. [37] I accept that this is so.

Self-Punishment

1. Beyond the question of remorse, the evidence establishes that the effects on Offender of the accident have led to a significant self-punishment in the sense of shame and guilt. This is apparent not only from his letters of apology, but also from the contents of Mr Benad's report who records: [The Offender] reported that he has been traumatised by the accident. He confirmed symptoms of post-traumatic stress. He described intrusive visual flashbacks of the accident. He spoke of reliving the ordeal during both the day and night. Reported a sense of helplessness and hopelessness both at the time of the accident and ongoing. He struggled to accept the enormity of what his actions have caused. He spent around seven weeks in custody. Intermittent state was highly compromised during his incarceration. He kept reliving the accident and he even considered self-harm. He spoke of a deep depression. … He reported significant insomnia. He reported difficulties achieving and maintaining sleep due to disturbing mental activity regarding the accident and related consequences. He has experienced distressing dreams of both the collision and a return to prison. He told me that he never feels like he has had a good sleep. He told me that he has seen photos of the accident site including blood on his vehicle. He reported a worsening of flashback memories consequential to viewing these photos. … He reported significant depressed mood following the accident which continues. He reported great sadness that he has permanently affected Mr Wright's life due to the man's lower leg amputation. He commented that he wanted to do something to help this man and his family however he did know how to or if it would be properly received by Mr Wright. He reported still concerns for other for the other officer involved. With depressed mood, he is withdrawn and non-communicative. He no longer receives the same sense of pleasure or joy from previously enjoyed activities. His moods are more depressed of an evening when he is not distracted by work. He has grappled with significant self-berating. He wonders how it could have been so stupid. He has experienced a strong sense of guilt and blamed himself for the collision.
2. This account was also supported by the observations of Offender's mother Mrs Thornton, who stated that the Offender is still struggling to talk about the matter as it weighs heavily on his conscience. She observed that the Offender continues to struggle with the guilt and consequences of the offence he has committed. Mr Thomas Thornton notes that the injury to the police officers and the life changing effects has deeply and painfully impacted on the Offender and he has been anxious and worried that his reckless and negligent behaviour has profoundly impacted on them and their families. Other testimonials also referred to the Offender's guilt and shame for what has occurred. [38]
3. As with remorse, it is appropriate to take into account the Offender's self-punishment. In doing so however, I am mindful that genuine remorse and self-punishment do not compensate for or balance out, high moral culpability. [39]

Mental Health

1. Mr Benad concludes that the Offender has been suffering symptoms of Post-Traumatic Stress Disorder due to the collision. Mr Benad notes that while the Offender's trauma symptoms have started to abate, his prominent disturbance is depression and the Offender meets the criterion for major depressive disorder. He records this is directly attributable to the motor vehicle accident and the consequences that it had on the lives of the victims.
2. It appears from the report of Mr Benad that the Offender has had psychological therapy which he is desirous of continuing. He notes that despite the difficulties the Offender remains unmedicated and continues to ponder the suggestion of anti-depressant medication.
3. The Crown submitted that the Offender's mental health post the offence, was not at the level that the Court would find that the Offender was not an appropriate vehicle for specific or general deterrence. [40]
4. The Defence submitted that the Offender's underlying mental health issues make him an inappropriate medium for general deterrence and that the initial incarceration of the Offender has addressed any specific deterrence issues. [41] Reference was made to the fact that whilst in custody the Offender had been targeted and threatened.
5. In Director of Public Prosecutions (Cth) v De La Rosa [42] McClelland CJ at CL stated: [178] ….the mental health problems of an offender need not amount to a serious psychiatric illness before they will be relevant to the sentencing process. The circumstances may indicate that when an offender has a mental disorder of modest severity it may nevertheless be appropriate to moderate the need for general or specific deterrence: R v Skura [2004] VSCA 53; R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at [5].
6. The Offender in this instance has already served a short time in custody. It was uncontested that his experience resulted in him being targeted and threatened, although it is not suggested that this related to the offences in question. Mr Benad also notes that the Offender also suffers from anxiety related to his future potential loss of liberty.
7. In the circumstances I am satisfied that a custodial sentence would weigh more heavily upon the Offender and this diminishes the significance of specific deterrence within the principles referred to in Director of Public Prosecutions (Cth) v De La Rosa. [43] I am not satisfied however, that the Offender is otherwise an inappropriate vehicle for general deterrence. Whilst I accept that the outcome in terms of injuring the two victims was not what the Offender intended, the course of conduct he embarked on was deliberate. His actions were clearly not impulsive but sustained, as I have found.

Media Scrutiny

1. The Defence submitted that in sentencing the Offender I should take into account the intense media scrutiny that he has had to endure since the incident.
2. The testimonial from Blessing Mtiza describes that when he saw on TV that the Offender was the driver behind the accident, he could not believe what he was hearing and seeing. He described that Facebook photos from over 5 years ago were posted all over media outlets that drew the picture of a "thug like young person who was careless and reckless." There was also evidence from the Offender's mother that the Offender told her that it was due to the media attention that the Offender was recognised in prison and congratulated for running down police and nicknamed "cop killer", which did not sit well with him. Thomas Thornton also describes that the media scrutiny that the Offender received has ensured that he has understood the seriousness and lifetime effects of his behaviour.
3. The Defence did not identify that the media scrutiny in this case was such that it amounted to what can be described as extra curial punishment nor public humiliation and vilification that had any physical or psychological effect on the Offender. [44] As far as I can discern, the Offender's submission was based upon the public opprobrium that he received; which may be described as a form of extra curial punishment. The submission was not fully developed and specific evidence was limited. [45] I would accept that the public opprobrium the Offender has received has found reflection in his own genuine remorse, and what Mr Benad describes in his report as a strong sense of guilt and blame for the offences; matters I have already taken into account. Otherwise I share the reservations expressed by McHugh J in Ryan v The Queen and would not otherwise attach much additional weight to this factor. [46]

Prospects of Rehabilitation and Likelihood of Reoffending

1. In his report Mr Benad states: "Mr Thornton presents as a reasonably intelligent young man and I believe this experience should permanently sensitise him to his obligations under the law. Such an experience should serve to eradicate a sense of complacency that had developed in relation to fully complying with the road rules."
2. The accompanying references that I have referred to also note that the Offender enjoys strong family and employer support. He has by his plea and cooperation with law enforcement, acknowledged his responsibility for the events which occurred.
3. The Crown accepted that the Offender had a low likelihood of reoffending and good prospects of rehabilitation. [47]
4. I am satisfied in the circumstances that the Offender does have good prospects of rehabilitation and low likelihood of reoffending. So much is also confirmed by the contents of the sentence assessment report, which finds that the Offender is at a Tier 3 low risk of re-offending.

Sentence

1. In considering the purposes of sentencing [48] regard is to be had to the comments of Wilson J in R v Manok: [49] 78. In sentencing for offences of dangerous driving occasioning death or grievous bodily harm, the need for strong denunciation and general deterrence has always been recognised as very important. Indeed, the primacy of general deterrence is such that, ordinarily, it outweighs the remorse or rehabilitation of an offender: R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep) per Hunt CJ at CL. 79. That is because of the prevalence of the activity of driving, and the terrible consequences that can flow from a failure by a driver in the management of a motor vehicle. Almost every adult in our community drives; any driver can commit an offence of dangerous driving, manifesting in death or severe injury. It is important that all drivers be deterred from driving dangerously by the sentences imposed on those who transgress.
2. In WW v R, [50] Hoeben JA (as his Honour then was) stated: 81. ……. an activity which so occupies the attention of a driver that he does not or cannot observe the road for at least six - nine seconds and allows his vehicle to veer onto the wrong side of the road is tantamount to driving with one's eyes closed. It is an activity deliberately undertaken and it is an activity which is highly dangerous. The fact that many young people misguidedly engage in such an activity while driving does not reduce the moral culpability of the conduct. On the contrary, as his Honour appreciated, it is a further justification for why general deterrence was so important in this matter.
3. I accept the Defence submission, as did the Crown, that WW v R involved different circumstances and a more serious offence involving death. [51] Nevertheless it is a useful statement that characterises the general nature of the relevant danger involved and the need for general deterrence.
4. In the instant case, both parties accepted and I am satisfied pursuant to section 5(1) of the 1999 Act that having considered all possible alternatives, no penalty other than imprisonment is appropriate. [52]
5. The Court must first determine the length of the sentences it is to impose before embarking on any consideration of how they are to be served.
6. The Crown accepted that the case involved many of the characteristics attributed to a typical case referred to by Spigelman CJ in R v Whyte. [53] According to that decision, a frequently recurring case of an offence under s 52A has the following characteristics: 1. young offender 2. of good character with no or limited prior convictions 3. death or permanent injury to a single person 4. the victim is a stranger 5. no or limited injury to the driver or the driver's intimates 6. genuine remorse 7. plea of guilty of limited utilitarian value.
7. I have earlier referred to the aggravating factors that I have found to be present and my finding is that the offending conduct involved high moral culpability and an abandonment of responsibility.
8. In R v Whyte [54] Spigelman CJ stated: A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.
9. His Honour added: Where the offender's moral culpability is high, a full time custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate. [55]
10. In sentencing the Offender I have regard to the maximum penalty, which in each case, is one of 7 years imprisonment. I note the guideline as referred to in R v Whyte, observing that the guideline does not circumscribe the sentencing discretion and is to be taken into account as a "check" or "guide" but not a "rule" or "presumption."
11. In sentencing the Offender, the sentence needs to provide for strong denunciation and general deterrence. The Offender himself also needs to be made accountable and adequately punished. I accept that the Offender has been specifically deterred to a large extent and the evidence is such that he is at a low risk of re-offending and has good prospects of rehabilitation. As a young person, with many years ahead of him, the community has an interest in seeing that he returns to society as a contributing citizen. No submission was advanced that the community has a need to be protected from the Offender and in light of the Crown's acceptance as to the risk of reoffending, I am satisfied that such a need does not arise.
12. I acknowledge the enormous sense of grievance that each of the victims no doubt, feel. This is understandable. However this cannot be allowed to interfere with the proper exercise of the sentencing discretion any more than expressions of sympathy in the Offender's favour. [56] Any sentence that the Offender receives will be of a finite duration and cannot restore what either of the victims have lost.
13. Having said that, the significant harm to each of the victims needs to be recognised in the sentence.
14. In looking at the appropriate cases my attention was drawn by the Defence to a series of cases summarised on the Public Defenders website. Specifically reliance was sought to be drawn to the case of R v Greaves. [57] In that case the Court of Criminal Appeal amongst other things declined to vary the sentence of an ICO ('ICO') [58] for 19 months and 17 days for an offence under s 52A(3)(c) where the victim received serious injuries that led to him becoming a paraplegic. The Offender was aged 21 at the time. He had a blood alcohol reading of 0.149 and had been speeding. The Court of Criminal Appeal described the driving as aggressive and erratic and overall found a clear abandonment of responsibility. The case was assessed as more serious than a typical case in Whyte. The sentence imposed at first instance was found to be manifestly inadequate. Specifically the Court noted that the guideline in Whyte referred to fulltime custody and not an ICO. However in the exercise of residual discretion the Court declined to interfere principally on the basis of delay and that a substantial portion of the ICO had been completed.
15. In my view, the sentence imposed in R v Greaves is not an appropriate precedent for the exercise of sentencing discretion.
16. The Defence further sought reliance on R v Pullen. [59] That was also a Crown appeal in which the Offender was convicted of an offence under s 52A(3)(c) involving speed, intoxication, other road users put at risk and ignoring warnings. Between medium and high moral culpability was found. A sentence of 13 months was indicated, which together with an indicative of 3 months for an offence of failing to stop under s 52AB(2), leading to an aggregate sentence of 15 months to be served by way of an ICO. On appeal indicative terms were indicated of 2 years and three months (for the offence under s 52A(3)(c)) and 1 year and 6 months (for the offence under s 52AB(2)). An aggregate term of 3 years was imposed, to be served by way of ICO, with a number of additional conditions.
17. Whilst that case did involve more than one offence, it only involved one under s 52A(3)(c) of the 1900 Act. [60] The Crown argued that the injuries sustained in that case by the victim were in some ways comparable [61] to or arguably less, than those of Senior Constable Foley, [62] but the injuries to Senior Constable Wright were more significant and well above. [63] The Defence conceded that the injuries sustained by one of the victims in the instant case were well above those in R v Pullen. [64]
18. Ultimately each case is to be determined on its own facts and with that in mind I have also examined other appellate decisions involving analogous matters apart from those mentioned including Harrigan v R; [65] R v Woodland; [66] Black v R; [67] R v AB; [68] Stayard v R; [69] ; Primmer v R ; [70] Silvestri v R; [71] and Mansweto v R. [72]
19. In setting the term, I propose to proceed by way of aggregate sentence. [73]
20. The indicative terms of imprisonment I would propose would be: 1. Sequence 1: but for the plea of guilty, 2 years and 10 months. In light of the plea 2 years and 1 month. 2. Sequence 2: but for the plea of guilty, 3 years and 6 months In light of the plea 2 years and 7 months.
21. Having regard to the principles of totality, accumulation and concurrency, I note that in this case whilst there was a single act, there were two victims. Some degree of concurrency and accumulation is called for in the context of an overall proportionate sentence which acknowledges the criminality of the offending.
22. I would therefore impose an aggregate sentence of 3 years and 8 months imprisonment. Both parties advanced submissions based on the decision in R v Pullen [74] by reference to the amendments brought about by the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2018 (NSW). Those principles however, only apply in circumstances where an ICO may be available as provided for in ss 7, 68 and 69 of the 1999 Act as it now stands. In the context of the sentence, I have determined this option is not available.
23. The Crown accepted that the case was one where there was a basis for finding special circumstances. This will be the Offender's first substantive time in custody. By reason of his youth, good prospects of rehabilitation and low likelihood of reoffending, I am satisfied that it is an appropriate case for me to find special circumstances and to vary the statutory ratio. [75]
24. The Offender came into custody on 16 February until he was bailed on 19 April 2018. He should be credited with 2 months and three days, such that the sentence should commence on 12 January 2019. [76]

Orders

1. The Offender is convicted.
2. The Offender is sentenced to an aggregate term of imprisonment of 3 years and 8 months comprising of: 1. a non-parole period of 2 years from 12 January 2019 to 11 January 2021; and thereafter 2. an additional term of 1 year and eight months from 12 January 2021 to 11 September 2022 during which he shall be eligible to be released to parole.
3. The Offender's earliest release date will be 11 January 2021.
4. I recommend to the Commissioner for Corrective Services that the Offender be placed in the Young Adult Offenders programme.
5. The Offender is disqualified from driving for the statutory period of 3 years pursuant to s 205(2)(d) of the Road Transport Act 2013 (NSW), after accounting for the period of his suspension following his arrest.

Endnotes

1. It appears that there were from the Offender's girlfriend's phone. No issue was taken that they otherwise accurately recorded the conversations that took place.
2. Hereinafter the "1999 Act".
3. 1999 Act s 28.
4. T 9.06-.07.
5. T 23.25.
6. (2002) 55 NSWLR 252 at [216]-[217].
7. T 28.17-.20.
8. R v Whyte (2002) 55 NSWLR 252 at [216]-[217]
9. T 17.40-18.35
10. T 13.18-.27 and T 14.23-.26.
11. T 60.15.
12. Defence submissions at p 4 and T 49.13-.20.
13. T 64.31-65.04.
14. T 20.30-.34, T 44.39, T 56.14.
15. T 17.26-.28. See also R v Takai[ 2004] NSWCCA 392 at [39] (per Simpson J with whom Dunford and Hidden JJ agreed) and Nashed v R [2010] NSWCCA 282 at [23] (per Garling J with whom Simpson and Price JJ agreed).
16. (2002) 55 NSWLR 252 at [216]-218].
17. R v Whyte (2002) 55 NSWLR 252 at [216]-[218].
18. As this offence does not carry a standard non parole period it is unnecessary to otherwise state where its objective features fall in relation to an offence in the mid-range of seriousness pursuant to s 54 A; See Georgeopoulos v R [2010] NSWCCA at [30]-[32].Neither party made specific submissions. on this.
19. (2002) 55NSWLR 252 at [204].
20. R v Janceski [2005] NSWCCA 288 at [21]-[23] (Per Hunt AJA with Spigelman CJ and Howie J agreeing).
21. 1999 Act ss 21A(3)(k), 22
22. 1999 Act s 21A(3)(f).
23. R v Ngyuen [2008] NSWCCA 113 at [51] (per Hall J with whom James and Hoeben JJ agreed).
24. See MFI 1, Crown Written Submissions, at [24] and T 23.33-.25.04.
25. Defence written submissions at p 3.
26. Kerr v R [2016] NSWCCA 218 at [68] (per Bathurst CJ with whom Hoeben CJ at CL and Price J agreed).
27. (1986) 6 NSWLR 603. The Defence written submissions appear to referenced to s 22A(3)(l) of the 1999 Act instead of ss 21A(3)(m) and 23.
28. Defence written submissions at p 4.
29. T 27.47-28.08.
30. T 28.10-.15 and 58.05-.39.
31. Panetta v R [2016] NSWCCA 85 (with whom Ward JA agreed).
32. Exhibit 1.
33. Exhibit 1.
34. Exhibit 1, p 7.
35. Exhibit 1, p 8.
36. Exhibit 1, p 12.
37. T 26.08 -27.24.
38. Exhibit 1.
39. R v Koosmen [2004] NSWCCA 359 at [32].
40. T 28.17-29.04.
41. MFI 2 at p 6. See also T 56.1-.09.
42. (2010) 205 A Crim R 1; [2010] NSWCCA 194.
43. [2010] NSWCCA 194 at [177]-[178] (per McClellan CJ at CL).
44. Duncan v R [2012] NSWCCA 78 at [28] (per Basten JA with Blanch and Hall JJ agreeing).
45. T 63.14-.24.
46. (2001) 206 CLR 267 at [52]-[55]; Hayne J substantially agreeing at [157].
47. T 27.21-.30.
48. 1999 Act s 3A.
49. [2017] NSWCCA 232.
50. [2012] NSWCCA 165.
51. T 61.14-.16 and T 27.34-.45
52. 1999 Act s 5(1). See also Defence written submissions at p 8 and Crown written submissions at [36].
53. (2002) 55NSWLR 252 at [204].
54. (2002) 55.NSWLR 252 at [214].
55. At [229].
56. R v Palu (2002) 134 A Crim R 174 at [37].
57. [2014] NSWCCA 194.
58. R v Greaves [2014] NSWCCA 194 at [45]. Intensive Corrections Order hereinafter referred to as "ICO".
59. [2018] NSWCCA 264.
60. T 31.03-.30.
61. T 31.22.
62. T 31-.37.
63. T 31.43.
64. T 34.40-.45.
65. [2005] NSWCCA 449.
66. [2007] NSWCCA 29.
67. [2010] NSWCCA 321.
68. [2011] NSWCCA 229.
69. [2013] NSWCCA 134.
70. [2015] NSWCCA 155.
71. [2016] NSWCCA 245.
72. [2018] NSWCCA 232.
73. 1999 Act s 53A.
74. [2018] NSWCCA 264 at [89].
75. 1999 Act s 44.
76. 1999 Act s 24.

Amendments 18 March 2019 - Typographical Errors amended Charges added to introductory heading 09 December 2019 - paragraph [157] amended to read '11 September 2022' instead of '11 August 2022' due to slip error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2019