14 Dr Perl thought, having regard to the offender's behaviour (briefly described above), the concentration of methamphetamine found in his blood sample, was surprisingly low. This suggested that the offender may not have been a regular user of amphetamines and thus had a greater susceptibility to its stimulant effect with a lower dose. She thought that, having regard to the quantity of drug in his blood, the offender had taken the drug six to eight hours and possibly even less a period before the accident.
15 Dr Perl said that she would not have expected any memory impairment due to the methamphetamine that the offender ingested. Whilst the drug can produce paranoia and hallucinations, there is no evidence of any such symptoms and I am satisfied that the offender did not suffer them. Having regard to the concentration of methamphetamine in the offender's blood, Dr Perl expected that there would be an increased alertness without any severe impairment of recollection, although he was obviously agitated. It is not necessary for me to express a final opinion upon this point, but there was evidence which probably established that the offender, at least by the time he got to the hospital, was suffering from amphetamine toxicity. His statements in the hospital must be considered in this light.
16 The Crown also called Dr Wong, who is a very experienced psychiatrist, to give evidence concerning the offender's likely mental state at the time of the accident and thereafter at the hospital, when he made the statements about his driving which I have mentioned. The doctor's view, which I accept, was that the offender was not suffering from delusions or hallucinations at any material time and that he was capable of making reliable and accurate statements and appreciating the natural and probable consequences of his acts. Whether he did so, of course, is another matter.
17 The offender's evidence was that he recalled leaving the parking area at Daltons but not anything else about the journey until immediately before he collided with the two cars being driven by the deceased. He said that he remembered "being on the wrong side of the road is what I figured it out to be and just very quickly there was just cars to the left of my bonnet and to the right of my bonnet and all of a sudden this mighty crash". He remembered someone on the bonnet of the truck yelling at him and someone else at the window and swearing at them and telling them to go away. He said that he did not recall the police or the ambulance officers, coming out of the cabin of the truck and going to the ambulance, the trip to the hospital or being examined. Indeed, he had no further recollection of events until about midday on the Sunday following the accident. However, there was evidence from Dr Madden who was, at the time of the accident, the psychiatric registrar at Concord Hospital that he interviewed the offender on the early afternoon of Saturday 19 September 1998, namely, the day after the accident, and concluded that he was orientated, alert, able to maintain and focus attention and answer questions in an appropriate and logical manner. Except for saying that he had no memory of the events of the previous night, there were no other signs of any abnormal mental state. The doctor thought that the offender was mildly sedated probably as a result of the medication given him in the hospital the night before, but there was no evidence to suggest that he was intoxicated with amphetamines, though he may have been suffering mildly from sleep deprivation and possibly methamphetamine withdrawal. Dr Wong's opinion was, in substance, that the methamphetamine ingested by the offender had not affected his memories adversely. However, he added, in effect, that the sedatives given to the offender after his admission to hospital, if they had any effect, would affect mostly the events that transpired thereafter and that the effect on his memory of events prior to the administration of the medicine would have been insignificant.
18 I am sceptical of the truthfulness of the offender's evidence that he did not remember events at the hospital, and I do not accept that he cannot recall his consultation with Dr Madden. More importantly, I do not accept that he had no memory of the events leading to the collisions either when he spoke to the police or Dr Wong or, for that matter, when he gave evidence in this Court. There may be a number of explanations for this untruthful denial of any memory of how he came to be on the wrong side of the highway. The most reasonable inference available is, I think, that he simply is unwilling to articulate a memory of events which had such catastrophic consequences and for which he knows he was responsible. The extent of his feelings of guilt may be judged from his insistence that he wished to stay in the cabin of the truck despite what I accept to be his genuine fear that it was about to explode from the ignition of its cargo. Whilst he was then probably in a state of amphetamine induced intoxication, this did not render these expressions any less likely to have been sincere. I consider that, indeed, they reflected his then state of mind.
19 That the offender was at times babbling and incoherent and exhibited other symptoms suggestive of amphetamine intoxication is relevant to assessing the reliability of his statements in the hospital. In my opinion, there was a significant element of exaggeration in the offender's language caused not only by the intoxicating and disinhibiting effects of amphetamine intoxication, but also by his emotional reaction to the appalling events which he had precipitated. I therefore conclude that, when making the statements about the accident, the offender was not accurately describing his state of mind at the time of the collisions. It is at least reasonably possible that his statements in the hospital, themselves probably exaggerated, were a reconstruction warped by the intensity of his emotions resulting from the amphetamine intoxication combined, I rather think, with profound feelings of guilt.
20 Although the offender's then state of mind was affected by methamphetamine, there can be no doubt that he intentionally drove across the median strip into the traffic which he saw coming towards him, which any reasonable person must have known would be extremely dangerous to life and limb. Since the offender is convicted of manslaughter and not murder, however the circumstances might be understood, he cannot be punished for any intention to kill or cause grievous bodily harm or being recklessly indifferent to human life. The measure of the offender's culpability, for present purposes, is that provided by the elements of the crime of manslaughter by an unlawful and dangerous act. I cannot punish him for a crime of which he has not been convicted. I must punish him for the crime to which he has pleaded guilty. I am persuaded beyond reasonable doubt that the offender adverted to the possibility, but perhaps not to the probability, of his actions causing serious injury and, because of his intoxicated state induced unwittingly by methamphetamine, intentionally drove across the median strip and into the path of oncoming cars. Neither the facts nor the law permit me to go any further.
21 Another difficulty with assessing the level of culpability for the purposes of sentencing the offender derives from the circumstances in which he took the methamphetamine. Almost every case of dangerous driving whilst affected by a drug involves an offender who has intentionally taken the drug for the purpose of experiencing the pleasurable effects of altered consciousness. Moreover, when they drive, such offenders are aware of their euphoric and disorientated state and thus that it is dangerous to drive, although the drug usually also disinhibits them from concern about the dangers. This behaviour is obviously criminally culpable. However, in this case, the offender, who was clearly unable to drive safely given his exhaustion and fatigue, took the drug, I am satisfied, in order to enable him to drive some relatively short distance to a place where he might rest. I am also satisfied that, were it not for the methamphetamine, the offender would not have driven as he did. Furthermore, it seems to me to be obvious that, when he took the methamphetamine, he did not expect and had no reason to think that he would suffer from any intoxication, let alone that he might intentionally drive into oncoming traffic. He had taken it before and there was no suggestion that he had experienced any ill effects. He was a worker on his way home, not a drunk out on a spree.
22 This is not a case where an intoxicated driver lost control of his motor vehicle because of distorting effects on his or her perceptions and reflexes but, rather, extreme aggression brought about by the ingestion of a drug probably known to be unsafe or at least unpredictable in a general way, but which was not intended to cause any altered state of consciousness except that of overcoming fatigue. The offender's culpability is significantly reduced but not, for the reasons I shall shortly mention, by very much, by the fact that his intoxication, unlike that of the person who drinks alcohol or who takes drugs for euphoric effect, was not intentional.
23 I consider that the offender did not appreciate and had no reason to think that it was as dangerous to take the methamphetamine as proved to be the case, or that it might have the effects on his psyche which caused him to cross the median strip. At the same time, the offender was not some kind of automaton acting entirely under the influence of the drug. Certainly, it caused a significant increase in aggression and risk-taking behaviour and it is fair to say that, but for his intoxication, he would not have driven as he did. As affected as he was, however, the decision to drive into oncoming traffic was nevertheless made by the offender knowing that it was dangerous, however much that recklessness was caused by the drug.
24 When the offender came to pick up the load from Valspar, as I have mentioned, he was completely unfit to drive any vehicle, let alone a semi-trailer, and his doing so created, as he well knew, considerable risk of injury to other persons using the road. In this sense, his reckless behaviour preceded his taking the methamphetamine. However, he took the drug to restore alertness and energy, in short, the ability to drive properly. Even so, I have no doubt that the offender knew that his capacity to drive safely may well be affected by a combination of his fatigue and the drug, although he disregarded this risk, in the mistaken opinion that he would be able to manage safely enough to drive the twenty kilometres or so to that night's destination. His judgment was probably distorted by his extreme tiredness, but this is to underline the dangerousness of his behaviour. The offender knew that to drive his heavy vehicle at conventional speeds in traffic whilst able to function only because he had taken a roughly measured quantity of stimulant which induced artificial wakefulness was dangerous, even though he had no way of foreseeing the appalling manner in which that danger ultimately manifested itself. As a result of this recklessness, two persons lost their lives.
25 The offender admitted falsifying his log book in order to conceal his failure to comply with the obligatory rest requirements which applied to his schedule. For some hours before this accident he had been driving in a state of exhaustion which he knew must have been dangerous of itself. His taking of the methamphetamine, therefore, was not an isolated act of unlawful behaviour, but part of an extended period of reckless folly which, had he given the matter any thought, he would have appreciated was capable of catastrophic consequences at almost every point.
26 For these reasons, I do not think the fact that the offender did not take the drug for its euphoric, as distinct from stimulant, properties lessens substantially the objective gravity of the offence in the circumstances of this case. Nor does it lessen the need to impose an appropriately deterrent sentence, not so much to deter this offender, as other drivers who might be tempted to use drugs to overcome fatigue.
27 The offender was born in 1971 and hence was aged twenty-seven at the time of the accident. The only material matters noted on the offender's record, were that he was fined for disobeying traffic lights in 1989 and negligent driving in 1990, they seem to have been dealt with by the issue of a notice. I think I should disregard them for present purposes. The offender had been working as a truck driver for some years before taking up employment with Parsons Transport with which he had been working for about five weeks before the accident. He was a reliable and hard working employee who was well regarded by his employers. As at the date of the accident he had been married for about three and a half years. They have no children. I am satisfied that the offender is remorseful for what he has done, quite apart from what follows from his plea of guilty. That plea, of itself, does not indicate any contrition as it was, I think, recognition of the inevitable. Even so, he is entitled to some recognition in terms of his sentence, as a consequence of his plea, which in the circumstances was given at the first opportunity. It is also consistent with the remorse which, as I have mentioned, I am satisfied he feels.
28 Victim Impact Statements have been tendered on behalf of the families of the two persons who were killed, Susan Mary Barnes and Arthur Hwee Siew Wong. Both these statements give expression to the intense grief and great suffering which has resulted from their deaths. As time goes by, the intensity of these feelings will hopefully soften but each anniversary, each family gathering, will be, of itself, a reminder of the missing loved one. I offer the Court's consolation to both these families conscious, nevertheless, that their pain and anger and anguish will remain with them for many years.
29 In permitting Victim Impact Statements to be received in a hearing such as this, however, the law does not thereby place them to be weighed in the scales of judgment. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury know to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others. It would seriously undermine the moral standards essential to the rule of law to suggest that justice could regard the life of one person as more or less valuable than the life of another or, to put it in another way, the killing of one person as more grievous than the killing of another, because of their personal and social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was obnoxious, stupid, friendless or alone. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was loving and loved and surrounded by friends and family. If this were not so, counsel for an offender whose actions caused a death might rationally submit that, as the deceased was of the former character, the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process.
30 In considering the appropriate sentence in this case, I have noted the guidelines set out in R v Jurisic (1998) 45 NSWLR 209 esp at 231. Of course, that case dealt with offences under s 52A of the Crimes Act 1900. Usually, manslaughter, when caused by dangerous driving is a more serious crime. Certainly the applicable maximum penalty is considerably higher.
31 Having regard to the circumstances that both offences arose out of the same course of driving, the sentences will be concurrent. Even so, the period of the sentence must reflect the totality of criminality and thus take into account that there were two deaths and thus two offences of manslaughter committed, not one. I do not consider that special circumstances exist. The offender has been in custody since 27 March 2000 and therefore both sentences will commence on that date. I have been informed, however, that before he was taken into custody on that occasion he spent forty-eight days in custody on remand before being granted bail. I have therefore reduced by two months the sentences which otherwise I would have imposed.
32 Michael James Ryan, for each offence comprising the manslaughter of Arthur Hwee Kiew Wong and Susan Mary Barnes, you are sentenced to a term of seven years ten months imprisonment with a non-parole period of five years and ten months. The earliest date upon which you will be eligible to parole is 26 January 2006.