Mitreski v The Queen; R v Mitreski

[2008] NSWCCA 301

Appeal Outcome: Special leave refused by the High Court - 11 December 2009

New South Wales

Court of Criminal Appeal

CITATION:	MITRESKI v R; R v MITRESKI [2008] NSWCCA 301
HEARING DATE(S):	25 November 2008
JUDGMENT DATE:	11 December 2008
JUDGMENT OF:	Giles JA at 1; Latham J at 2; Mathews AJ at 64
DECISION:	1. Appeal against conviction dismissed. 2. The sentences imposed by Graham ADCJ on 13 June 2008 are quashed. 3. On the first count, the respondent is sentenced to a non parole period of two years to date from 21 June 2008, expiring 20 June 2010, with a balance of term of one year, expiring 20 June 2011. 4. On the second count, the respondent is sentenced to a non parole period of two years, to date from 21 October 2008, expiring 20 October 2010, with a balance of term of one year, expiring 20 October 2011. 5. The disqualification period of three years from 3 April 2008 is confirmed.
CATCHWORDS:	CRIMINAL LAW - Conviction appeal - Dangerous Driving Causing Death - whether verdicts were unreasonable - Crown case based on excessive speed and management of vehicle - appellant's account admitted excessive speed - jury not bound to accept the appellant's account where evidence of actual speed was indeterminate - Crown appeal against inadeqate sentences - whether judge required to find speed of respondent's vehicle for purposes of sentencing - effect of jury verdicts - erroneous characterisation of respondent's liability based upon momentary inattention - failure to apply guideline judgment re Dangerous Driving.
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252 R v Khatter [2000] NSWCCA 32 R v Davies [2000] NSWCCA 84 R v Dunlop [2001] NSWCCA 435 R v Romanic [2000] NSWCCA 524 R v Guilfoyle (1973) 57 Cr App R 549 R v Musumeci (unreported) NSWCCA 30 October 1997 R v Bailey [2001] NSWCCA 10 R v Sopher (1993) 70 A Crim R 570
PARTIES:	Zlatko Mitreski - Appellant Regina - (Crown) Respondent Regina - (Crown) Appellant Zlatko Mitreski - Respondent
FILE NUMBER(S):	CCA 2006/6246
COUNSEL:	D Dalton SC / D Carroll - Appellant/Respondent D Arnott SC - (Crown) Respondent/Appellant
SOLICITORS:	Hal Ginges & Company - Appellant/Respondent S Kavanagh (Solicitor for Public Prosecutions) - (Crown) Respondent/Appellant
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/61/0107
LOWER COURT JUDICIAL OFFICER:	Graham ADCJ
LOWER COURT DATE OF DECISION:	13/06/08

2006/6246

GILES JA
LATHAM J
MATHEWS AJ

11 DECEMBER 2008

ZLATKO MITRESKI v R

R v ZLATKO MITRESKI

Judgment

1 GILES JA : I agree with Latham J.

2 LATHAM J : The appellant, Zlatko Mitreski, was convicted after trial of two counts of Dangerous Driving Occasioning Death (s 52A(1)(c) Crimes Act 1900), each count carrying a maximum penalty of ten years imprisonment. He was sentenced to two years imprisonment, comprising a non parole period of 15 months, on each count. The sentence for the second count commenced five months into the sentence for the first count and both sentences were ordered to be served by way of periodic detention. The aggregate sentence was therefore one of two years and five months, with an aggregate non parole period of 20 months. The appellant was disqualified from driving for a period of three years.

3 The appellant appeals against his conviction on the sole ground that the verdicts are unreasonable and cannot be supported by the evidence at trial. The Crown appeals against the sentences imposed upon the appellant/respondent on the ground that they are each manifestly inadequate and that the aggregate sentence is manifestly inadequate.

4 Put simply, the Crown case was that the appellant had driven his semi-trailer at an excessive speed, and in the wrong gear for the relevant gradient, across the path of an oncoming vehicle containing the two victims of the offence. Both the appellant’s vehicle and the victims’ vehicle left the road and collided head-on some distance from the road surface.

5 The conviction appeal, in both the written and oral submissions to this Court, was distilled to one proposition, namely, that because doubt had been cast upon the conclusion of the Crown expert as to the speed of the appellant’s vehicle when it left the road, it was not open to the jury to reject the appellant’s account of the accident. That account, given immediately after the accident and in an ERISP, but not confirmed in evidence at trial, was that the appellant had done so in order to avoid a collision with the victims’ vehicle, which was travelling on its incorrect side of the road.

6 The appellant’s argument seeks to elevate the issue of the speed of his vehicle to a critical one in the trial. Hence, most of the hearing of the appeal was devoted to an analysis of the expert evidence on this issue, with a view to demonstrating that the Crown’s expert opinion (that the appellant was travelling at approximately 71 - 87kph when he commenced to leave the road) was unreliable, and that the appellant’s estimate (that he was travelling at about 60kph) was correct.

7 However, the speed of the appellant’s vehicle was but one of a number of factors upon which the Crown relied to prove that the appellant’s manner of driving was objectively dangerous. Even on the appellant’s case, he was travelling approximately 20kph above the applicable speed limit at the relevant time. Therefore, it is not necessary in my view to re-visit the expert evidence in any great detail in order to dispose of this appeal. The appellant’s argument fundamentally misconceives the nature of the Crown case and disregards other significant evidence, which entitled the jury to reach the verdicts they ultimately returned. The following are my reasons for reaching this conclusion.

The Evidence at Trial

8 At about 6:00 a.m. on Saturday 8 October 2005, the appellant was driving a prime mover on the Great Western Highway near Hartley in an easterly direction after making deliveries for his employer at Bathurst and Orange. The roadway had a single eastbound lane and two westbound lanes (lane one being the closest to the southern shoulder). The weather was overcast, and there had been some light rain. The prime mover was towing a trailer, laden with 20 stacked empty pallets and one loaded pallet. The vehicle was in good condition and was free of mechanical defects.

9 The roadway on the approach to, and beyond the scene of the collision was winding sealed bitumen with a medium to steep gradient. The general speed limit was 80 kph, but a speed limit of 40 kph applied to trucks and buses, in addition to a requirement that trucks and buses use low gear. The relevant traffic regulation required a heavy vehicle driver to drive in a gear which limited the speed of the truck, without the use of the primary brake, that is, the foot brake. The appellant’s truck also had an engine brake, or exhaust brake. To comply with the relevant regulation, the appellant ought to have maintained the speed of the truck at or below 40kph by the use of both the low gear and the exhaust brake. The appellant acknowledged that 6th or 7th gear was a low gear.

10 The appellant told police during an interview conducted on 21 October 2005 that he was travelling at approximately 70 to 80kph on the flat at the top of River Lett Hill. The vehicle automatically changed down to the 9th or 10th gear (of 18 gears) as it began its descent and the appellant applied the exhaust brake. He said he did not apply the primary brake because of the wet conditions. When asked about his speed during the descent, the appellant said “I thought I was doing 55 when I come, come down there.” Later, the appellant said the vehicle was travelling at “58, 60 at the most” just prior to the negotiation of a steep (11% gradient) left-hand bend. As the appellant commenced to round the bend, he said he saw a green Toyota Lexcen travelling uphill in the opposite direction, in the eastbound lane. The appellant said he flashed his headlights but the Toyota continued on towards him. The appellant said he accelerated to 65kph in the hope he could move around the Toyota on the westbound lanes.

11 The Toyota Lexcen was being driven by Mr Robert John, with Mr Alan Sandstrom as a front seat passenger. The car had been under observation by a Ms Dalton, since leaving her home in the lower Blue Mountains to drive to Lithgow at approximately 5:15 a.m. Ms Dalton followed the Toyota at the speed limit of 80kph, until she stopped at Mt Victoria for petrol. Ms Dalton saw nothing to suggest any mismanagement of that vehicle.

12 Shortly before the site of the collision, the Toyota had entered a straight stretch of road after negotiating a left hairpin turn with a 45kph speed limit. The evidence of the investigating police was that the uphill gradient and the hairpin bend would have retarded the Toyota’s speed. Beyond that, the evidence was silent, although the Crown’s expert witness assumed a range of 60kph to 80kph for reconstruction purposes.

13 Just before the apex of the left hand bend, the appellant’s vehicle crossed into the westbound lanes, left the bitumen, and travelled approximately 25 metres onto a grassy area, where it struck the Toyota Lexcen. The truck then continued onto a gravel rest area and another grassy area before coming to rest approximately 50 metres from where it had left the road. The Toyota left the road approximately 25 metres east of the point where the truck left the road and travelled approximately 8 metres from the bitumen before the point of impact.

14 The observations made by the police attending the scene and by the Crown's expert, together with a large number of photographs, were consistent with both the prime mover and the trailer braking heavily just prior to leaving the road and up to the point of impact. There were skid marks where the truck left the road on the southern fog line. There were also dual furrows leaving the road surface, crossing the shoulder of the road and continuing through to the grass embankment. The skid marks and the furrows created by the movement of the truck did not deviate, that is, they indicated that the prime mover and the trailer had moved together in a straight line from about the apex of the curve on the eastbound lane to the point of impact.

15 The appellant’s expert largely agreed with the conclusions of the Crown’s expert, but for the extent of the braking and, consequently, the estimate of the speed of the truck when leaving the road. Taking their evidence together, the appellant was travelling at between 60kph and 87kph when the truck left the road. There was no dispute at trial about the point of impact.

16 The physical evidence also supported the fact that the Toyota was travelling in lane one, and that the driver applied the brakes and steered to the left when it left the roadway. The curvature of the furrows made by the Toyota as it left the bitumen was inconsistent with the Toyota travelling across the road from the eastbound lane. Given that the Toyota was travelling west, had it swerved to avoid the truck from the eastbound lane, the marks on the shoulder of the road would have been more perpendicular to the southern fog line than was in fact the case. The appellant's expert agreed that the Toyota was in lane one immediately before swerving off the road, and that the only evidence to the contrary was the account given by the appellant at trial. He further agreed that there was no physical evidence capable of placing the Toyota on its incorrect side of the road.

17 The account given by the appellant to various persons at the accident scene and in the course of his interview with police contained some material discrepancies with the physical evidence. The appellant maintained that the Toyota took evasive action by moving from the eastbound lane onto its correct side of the road and that the point of impact was in fact in lane one on the bitumen. The appellant at no stage volunteered that he had steered the truck off the road, rather his account was that he had accelerated slightly in an attempt to manoeuvre around the Toyota, but that the Toyota then corrected to the westbound lanes. The explanation given at trial for the appellant’s “mistake” about the point of impact was that he was suffering from shock immediately after the accident and had become wedded to that view.

The Summing Up

18 The appellant makes no complaint about the summing up.

19 The Crown case was put to the jury in the following terms :-

Here the Crown alleges that, as the accused drove down what it suggests was a steep hill, travelling in a generally eastbound direction from the Lithgow direction and towards the Sydney direction, on a road which was wet or damp on an overcast day, the accused … drove his vehicle at a speed which was excessive and did not drive in a sufficiently low gear as required by the sign erected under the Australian Traffic Rules. So that it is alleged, in effect, that he was unable to control the vehicle, whether by way of momentary inattention or fatigue, so that it left the highway and collided with a motor car on the rest area off the highway.
…………………………………………………………………………
The Crown case here is that the driving was dangerous in that the accused was travelling at a speed which was too high and in a manner which did not enable him to maintain control of his vehicle. The Crown case in essence is that he, in effect, drove off, or that his vehicle went off the road. The Crown does not accept his version that he did so in order to take evasive action in the light of the risk of collision with a motor car which, he says, was travelling towards him on the incorrect side of the road.
The Crown does not accept that that was an explanation for the accused leaving the roadway, but that the answer is to be found in evidence which, it says, establishes that his speed was excessive and that, by virtue of the way in which he controlled the vehicle, or perhaps momentary inattention or fatigue, that he failed to properly keep his vehicle under control so that he drove across the road and across the path of the Toyota vehicle, which was, on the Crown case, travelling on its correct side of the road.
……………………………………………………………………….
The Crown case is that to drive down that hill, in a heavy vehicle at that speed and in the gear in which it was being driven, was potentially dangerous to another person or to other persons, the risk being that the vehicle would cross on to its incorrect side of the road and collide with oncoming vehicles travelling in the lanes provided for those oncoming vehicles.

20 It is abundantly clear from the evidence at trial, accurately encapsulated by the above extract from the summing up, that the Crown case was not dependent upon a finding of fact by the jury that the appellant’s truck was travelling at a speed of between 70kph and 87kph when it left the road, or indeed a finding of fact that the truck was travelling at any particular speed. The Crown’s allegation was that the appellant was travelling at an excessive speed, and that there were other aspects of his management of the vehicle that constituted dangerous driving. It was open to the jury to conclude that anything above the speed limit applicable to heavy vehicles was excessive. It was also open to the jury to find that the manner of the appellant’s driving was dangerous, irrespective of the issue of speed. In that regard, the resolution of the dispute about the speed of the appellant’s vehicle was arguably superfluous.

21 The trial judge correctly told the jury that if they came to the view that it was a reasonable possibility that the appellant crossed to the incorrect side of the road in order to avoid colliding with a vehicle in the eastbound lane, then the appellant must be acquitted. There was nothing inherently illogical in rejecting the appellant’s account as a reasonable possibility, notwithstanding an inability to determine precisely how much above 60kph the appellant was travelling when he left the road. The appellant’s argument assumes that the speed of the appellant’s vehicle was in the nature of an intermediate fact, which was essential in the chain of reasoning towards guilt. In other words, if the Crown failed to establish that fact, the jury were bound to accept the appellant’s account because a speed of 60kph was, according to the appellant’s expert, consistent with that account. Not only is that proposition unsound, but the trial was not (and could not be) conducted on that basis.

22 Accordingly, the conviction appeal fails. I turn to the Crown appeal against sentence.

The Sentencing Proceedings

23 Following the respondent’s conviction on 3 April 2008, the Crown tendered the respondent’s criminal history (for minor summary offences) and his traffic record, which indicated that he had gained his provisional licence in 1981 and an unrestricted licence in 1982. He had five speeding offences between 1983 and 2000, and two negligent driving offences in 1984 and 1985. In January 2007, that is, after the accident, he was convicted of driving using a hand-held mobile phone.

24 Immediately thereafter, his Honour observed that the Crown case was one of driving in a manner dangerous, where there was "possibly fatigue or momentary inattention". The Crown Prosecutor responded with a submission that the convictions warranted full-time custody, particularly given the fact that the respondent was a professional driver and the absence of remorse. His Honour did not reject these propositions. Notwithstanding that a full-time custodial sentence was “on the cards”, the respondent was granted bail pending sentence.

25 On 30 May 2008, the matter came back before his Honour for sentence. The judge received written submissions under the hand of the Crown Prosecutor who had conducted the trial.

26 The submissions contained an extensive recitation of the facts said by the Crown to have been established at trial, including that "the offender continued down the hill in an easterly direction at a speed in excess of the speed limit and in a gear which did not comply with Regulation 108. Whilst negotiating a left-hand curve which was on a stretch of road which is a steep decline, ….. the offender's truck crossed over the centre separation lines on to the incorrect … side of the road". This was an entirely accurate summary of the facts which was never really contested at trial ; the respondent’s case consisted of an explanation for that manner of driving and that explanation was necessarily rejected by the jury. It was a moot point whether Regulation 108 was breached, but the respondent never disputed that he was not in a low gear.

27 The Crown submissions referred extensively to the guideline judgements of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252, in addition to the authorities of R v Khatter [2000] NSWCCA 32, R v Davies [2000] NSWCCA 84, R v Dunlop [2001] NSWCCA 435 and R v Romanic [2000] NSWCCA 524.

28 Khatter and Davies both drew attention to the "shades and gradations of moral culpability" that exist between the two extremes of momentary inattention and abandonment of responsibility. Romanic was cited as authority for the proposition that a non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgement. That case was a successful Crown appeal against a sentence of periodic detention, where the offence was not constituted by excessive speed or prolonged erratic driving. It did, however, involve more than momentary inattention and simple misjudgement and was aggravated by a degree of intoxication. The reference to these decisions was immediately followed by the following submission :-

It is the Crown case that the degree of moral culpability of the offender is high. His handling of the prime mover and un-laden trail in hazardous conditions in a low speed and gear area was morally culpable.

29 The Crown submissions went on to assert that the respondent's case was more serious than the typical case, according to Whyte, in that the offender was not a young offender and had a record of traffic offences. Any expressions of remorse were said to be tempered by the fact that the Crown case was strong. The respondent's subjective features, it was submitted, could not outweigh the objective seriousness of the offences.

30 The Crown's submission on the respondent’s moral culpability was repeated, in the following terms :-

The offender was a professional truck driver of a very large vehicle. He was driving well in excess of the speed limit and in a higher gear than was appropriate to the area in which the collision occurred in weather conditions which exacerbated the hazards.

Once again, there was nothing contentious about these matters.

31 Four victim impact statements were read to the court. The Pre-sentence Report noted that the respondent maintained his innocence.

32 The respondent was called to give evidence. He confirmed that when he had seen Dr Roberts, a psychiatrist, he had answered Dr Roberts’ questions accurately and honestly. Of particular relevance to the Crown appeal, the respondent gave this evidence with respect to the accident itself :-

Question : Do you still, sir, have feelings and emotions in relation to those events or that event?
Answer : I have feelings for that event for the rest of my life.
Question : Sir, was it the case that you wanted to go to the funeral of the deceased?
Answer : Yeah, I asked but the police wouldn't give me the information.
Question : Sir, is there anything that you would like to say - I am putting you on the spot in the witness box - in relation to your matter?
Answer : I'm very sorry for what’s happened, I know I'm part to blame but I've got to live with it for the rest of my life, the same as the relatives and other people are.

33 Dr Roberts provided a report which became an exhibit in the proceedings. Relevantly, it recorded the respondent’s account of the accident which was the same account given at trial. Dr. Roberts diagnosed the respondent with post-traumatic stress disorder as a result of the accident. It was noted that the respondent was provided with three or four counselling sessions at the expense of WorkCover and that the respondent reported a limited improvement in his symptoms over the period of time following the accident. The respondent did not continue with counselling, presumably for financial reasons. The salient aspects of Dr Roberts’ report, which were relied upon by the respondent's legal representatives for the purposes of sentencing, appear below :-

The management of post-traumatic stress disorder typically includes psychological treatment which may involve group therapy and individual therapy provided by clinicians specialising in such treatment. … It would therefore be appropriate for Mr Mitreski to be referred for treatment to a psychiatrist or clinical psychologist with a view to embarking upon a course of treatment. Specific treatment for post-traumatic stress disorder is typically unavailable in the public mental health system. In order to receive appropriate treatment, Mr Mitreski will require management in the private sector.
In the event that Mr Mitreski is sentenced to a custodial term, his vulnerability conferred by the persistence of acute psychiatric symptoms, unmoderated as a result of a lack of treatment, will place him at risk. Psychological and psychiatric services are limited in custody. In particular, there are no specific services for the management of post-traumatic stress disorder. In the event that Mr Mitreski receives a custodial sentence it is assumed that he will not receive optimal treatment, causing a further protraction of the course of his illness thereby worsening prognosis. In the event that he is placed in custody, it would be appropriate that his transfer to a correctional centre with access to psychiatric services be expedited.

34 In cross examination Dr Roberts acknowledged that the respondent may be treated in custody, but that he did not believe that the respondent would be treated as adequately as he would be in the community. The Crown tendered a letter under the hand of the Chief Executive of Justice Health, dated 11 April 2008, wherein the Chief Executive set out the services available to inmates suffering from mental health problems. In particular, the letter noted that "a wide range of mental health services are available to men suffering from depression and anxiety. This includes a comprehensive psychiatric assessment by a psychiatrist, ordering of appropriate investigations, ordering of psychiatric medication where clinically indicated, and ongoing monitoring and review of the inmate’s mental health status."

35 In the course of submissions, the respondent’s counsel noted that the Crown Prosecutor had "put quite non controversially many of the facts of the case". A limited number of issues were canvassed in the discussion that followed. The only ones relevant to this appeal are the submissions made in respect of the alleged breach of Regulation 108 and the respondent’s speed.

36 The competing views of the expert witnesses on the question of speed were revisited at length. Counsel sought to nullify the fact that the respondent was, on his own admission, exceeding the speed limit by at least 20kph by pointing to the evidence of the defence expert, who asserted that the respondent’s truck could safely negotiate the bend at speeds of up to 75kph. In the course of this submission, counsel said :-

Whilst it is conceded by Mr Mitreski by reason of his interview that he was going over 40kph and in fact he was going as fast as 65kph, that itself did not make the driving ... in a manner dangerous.

37 Further, when discussing the Crown’s expert evidence on the issue of deceleration of a truck under engine braking, the respondent’s counsel said:-

[the Crown expert’s] exit speed from the road was about 63 kph which is lineball with what the defendant said he was driving at and lineball with what [the respondent’s expert] said one would expect…

38 Taking the respondent’s excessive speed out of the equation paved the way for the submission that "this is a matter which involved on the jury's finding of the facts and as your Honour would find on the facts, a momentary lapse of attention, momentary inattention, that your Honour would not then be satisfied that other road users were placed at risk.” Having regard to the significance of the respondent’s excessive speed as a factor, albeit not the only factor, in his dangerous driving, this submission should have been categorically rejected.

39 The very last exchange between his Honour and the Crown's representative before the matter was adjourned for sentence to 13 June 2008 concerned the utility of making findings of fact on the question of speed. His Honour noted that the only evidence as to speed (apart from what the respondent himself had said) was "essentially a product of opinions expressed by persons who are essentially unchallenged as to their general expertise in traffic reconstruction but where a lot of the factors that went to make up their opinions were by no means certain." His Honour went on to say :-

it seems to me the jury could have arrived at its conclusion based on the premise that they were not satisfied that there was any truth in the version given by the accused. What they were left with was however sufficient to demonstrate dangerous driving. Namely, driving onto the incorrect side of the road without explanation as it were. … It seems to me it leaves the question of the speed and its influence on the cause of the collision up in the air, as it were, in terms of what facts have to be found. That does seem to call for some independent fact-finding by the sentencing judge. In one sense it was crucial to the opinions of the experts but even if those opinions were left aside .. both sides of the record .. have concluded that it was a manner dangerous, once [they] excluded the alternative hypothesis.

40 With respect to his Honour, these comments betray the same misapprehension about the Crown case as the submissions of the respondent’s counsel. The respondent’s driving on the incorrect side of the road was not “unexplained”. Excessive speed and the failure to employ a sufficiently low gear in the prevailing conditions were explicitly identified by the Crown as the explanation.

41 In any event, there are doubtless numerous instances of dangerous driving where it is not possible to determine which of a combination of factors were more causally related to the accident than others, but that does not justify the removal of any one or all of those factors from consideration when assessing the moral culpability of the offender. The Chief Justice in Jurisic at 229B noted that, absent a defence under s 52(8) that the death was not in any way attributable to a factor such as speed, a verdict presumes the causal link between that element and the death.

42 I am mindful of the caution this Court should exercise before finding error on the part of a sentencing judge on the basis of an exchange that has occurred before reasons for sentence are pronounced. However, it is necessary to refer to this aspect of the proceedings in order to understand how his Honour arrived at his assessment of the respondent’s criminality.

The Remarks on Sentence

43 His Honour began by referring to "some matters which might properly be said to be non controversial." They were that the offender was driving his prime mover and trailer in an easterly direction near Hartley shortly after 6 a.m. in the single lane provided for eastbound traffic, which was on a generally declining grade and which was subject to a speed limit (trucks) of 40 kph. On reaching a left-hand kerb in the roadway, his vehicle left the eastbound lane and proceeded across the two westbound lanes and, at a point some 12 m or so beyond the bitumen, collided with the vehicle driven by one of the deceased. The fact that the respondent was driving significantly above the speed limit was not included in this summary of non controversial facts.

44 To the extent that there was controversy, his Honour thought that it had been limited :-

to a significant extent, particularly having regard to the way in which the Crown case was put to the jury and particularly having regard to directions given to the jury as to the effect of the account given by the accused. The Crown case, as put to the jury, was that this was a case of momentary inattention or fatigue on the part of the driver of the vehicle. And the jury's verdict …. must inevitably be construed for the purposes of sentencing this offender as a verdict based on the Crown case that this was a case of momentary inattention or fatigue on the part of the offender.

45 Next, his Honour discounted fatigue as a finding of fact beyond reasonable doubt. His Honour proposed therefore to approach sentence on the basis that the jury’s verdicts were consistent with momentary inattention.

46 This was, in my view, a substantial misrepresentation of the Crown case at trial and hence, of the basis of the jury’s verdicts. As the passage from the summing up set out above at [19] makes clear, the Crown case was that the respondent was unable to control his vehicle because of the combination of excessive speed and inadequately low gear on a steep, wet bend in the road. These circumstances do not conform to the concept of momentary inattention.

47 His Honour discussed at length during the remarks on sentence the limitations underlying much of the expert testimony. Ultimately, his Honour concluded that the difficulties inherent in the use of a less than accurate plan and the interpretation of the various marks left on the bitumen and the shoulder of the road tended "to undermine much of the central opinions expressed by each of the experts, particularly as to issues of speed at various points, the degree and process of retardation of the vehicles, and the extent to which there was significant braking and at what point it became effective." His Honour then turned to consider the level of the respondent’s moral culpability on the basis that "his manner of driving was dangerous in the sense in which that expression is used in the section, but that the nature of dangerous driving in this case was that he was momentarily or briefly inattentive of his need to steer and drive his vehicle carefully on the road."

48 After referring to the Crown's written submissions, his Honour acknowledged that there were four factual matters upon which the court “would be prepared to sentence”. Those factual matters were :-

(i) the Toyota was in lane one westbound at all pertinent times ;

(ii) the truck was exceeding the speed limit as it travelled down the hill

(iii) the area of the impact was some distance from the southern fog line

(iv) the prospect of locking brakes in an unladen semitrailer such as that driven by the respondent on a damp road is higher ; therefore more care is required in those situations and exceeding the speed limit is more dangerous.

49 On the question of speed, his Honour said that there was

no doubt that the offender was exceeding the speed limit which required him, as a truck driver, to be driving at no more than 40 km per hour. His own estimate was that he was travelling around 50 or a little bit more than that at the time he came down the hill and was in about ninth or 10th gear. The requirement, by law, was that he was not only to remain at a speed less than 40 km per hour but that he was to maintain that speed without the use of the foot brake in the truck.

50 His Honour then proceeded to canvass the "significant issue as to the actual speed." Following a review of the evidence, his Honour said :-

I am not satisfied beyond reasonable doubt that the offender was travelling at any more than 50 km per hour or thereabouts at the time he left the eastbound carriageway , nor is the evidence sufficiently cogent to establish beyond reasonable doubt that the use of the ninth or 10th gear was a factor which contributed to his losing control of the vehicle or driving off the eastbound carriageway of the road. It was obviously insufficient to provide exhaust braking which would bring him within the legal road limit, but whilst that obviously involves a breach of the appropriate regulations, it does not, in the circumstances of this case, establish that his speed was excessive in the sense that it was an unsafe speed for him to travel at in those conditions with a lightly laden trailer on that particular day . In other words, the court must proceed to sentence on the basis that the momentary inattention occurred at a time when the vehicle was being driven at a speed which it could not be said beyond reasonable doubt was itself dangerous and contributing to the vehicle driven by the offender leaving the eastbound carriageway and ultimately coming into collision with the vehicle driven by the deceased.

51 The first finding highlighted in bold above is against the weight of the evidence. It was never submitted by anyone, least of all the respondent’s counsel, that the truck left the roadway at no more than 50kph. The most generous estimate for the respondent was 60kph (see [36] and [37] above). The second finding highlighted in bold builds upon the first and incorrectly assumes that an excessive speed must necessarily be found to be an unsafe speed before the case can be characterised as one involving more than momentary inattention. Even assuming a speed of 50kph, I fail to see how it could not be both excessive and unsafe, given that the respondent left the road. The same observations set out at [40] and [41] above apply to these findings.

52 After enumerating all of the aggravating factors in Whyte, his Honour found that none of them applied to the respondent and that therefore, it could not be said that he had abandoned responsibility for his conduct. Ultimately, his Honour assessed the moral culpability of the respondent “towards the lower end of that scale.”

53 It is important to return to what was said by the Chief Justice in Jurisic in order to understand the ambit of “momentary inattention”. The first reference to "momentary inattention or misjudgement" in Jurisic at 223 derives from R v Guilfoyle (1973) 57 Cr App R 549 at 552. There, the distinction was drawn between cases falling into two broad categories, namely, momentary inattention and “those in which the accused has driven in a manner which has shown a selfish disregard for the safety of other road users.”

54 The Chief Justice in Jurisic also referred to R v Musumeci (unreported) NSWCCA 30 October 1997, which was “in many respects .. a guideline judgment”. Following the introduction of s 52A, which almost tripled the maximum penalty formerly applying to this offence, Hunt CJ at CL in Musumeci summarised the considerations to be taken into account on sentence. In the course of that summary, his Honour said that where "the offence is committed even though the offender has had no more than a momentary or casual lapse of attention, there must always be room for a non-custodial sentence,….. but the case in which a sentence other than one involving full-time custody is appropriate must be rarer for this new offence.” (bold not in original)

55 Consistent with this formulation, the guideline promulgated by Jurisic characterised non-custodial sentences for an offence against s 52A as “exceptional and almost invariably confined to cases involving momentary inattention or misjudgement”. Whilst the Chief Justice did not say “no more than momentary inattention”, it is implicit, in my opinion, from the references to Guilfoyle and Musumeci. (See also R v Howland [1999] NSWCCA 10 at [39] “mere momentary inattention” ; R v Dunlop [2001] NSWCCA 435 at [42] “more than momentary inattention”) Next, and most importantly, the guideline went on to state that "with a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence of less than three years [in cases of death] … should be exceptional."

56 The aggravating factors involving the conduct of the offender are those set out in (iii) to (ix) at 231 in Jurisic, which include, relevantly for present purposes, the degree of speed, and the length of the journey during which others were exposed to risk. The presence of these factors were capable of indicating that the respondent had abandoned responsibility for his conduct, that is, that they were present to a material degree, and therefore exposed the respondent to a custodial sentence of at least three years, given that the matter went to trial.

57 Whilst it may be acknowledged that, in a relevantly similar case, the degree of speed might be so marginally above the applicable limit, and the length of the journey during which others are exposed to risk might be so brief, that the offender cannot be said to have abandoned responsibility for his or her conduct (see R v Bailey [2001] NSWCCA 10), that was not this case. The respondent acknowledged that he was familiar with the road, that he was aware of the danger inherent in driving a semi-trailer above the applicable speed limit down a steep gradient on a wet road, and that at no stage during his descent from the top of the hill (a distance of approximately 500 metres) did he comply with the relevant speed limit.

58 The failure to ensure that the truck was in an appropriately low gear, the failure to check the truck’s speed by applying the foot brake at the entry to the left hand bend and the respondent’s decision to accelerate across the westbound lanes were all part of the respondent’s case at trial. Once the jury rejected the respondent’s explanation for those decisions, I would regard the conclusion that the respondent had abandoned responsibility for his conduct as inevitable.

59 Turning to the subjective matters, his Honour found that the respondent was remorseful, notwithstanding his protestations of innocence. The remorse was said to arise out of the respondent’s and his sisters’ expressions of sympathy towards the deceased and the members of their respective families. However, that sympathy was not borne of any awareness on the respondent’s part that he was culpable. Rather, he expressed himself in terms which suggested that he was equally a “victim” of the accident. His Honour erred in attributing weight to the respondent’s expressions of remorse.

60 Before determining the appropriate sentence, his Honour remarked that he accepted Dr Roberts’ evidence that the respondent’s post traumatic stress disorder could not be effectively treated in prison. His Honour then took that consideration into account in order to find special circumstances and in the exercise of his discretion to impose a sentence by way of periodic detention rather than full-time custody. This represents an element of double counting. However, the more fundamental issue is whether the respondent’s condition should have diverted the judge from the imposition of a sentence which was otherwise warranted. In R v Sopher (1993) 70 A Crim R 570 at 573, this Court said :-

Health and age are relevant to the length of any sentence but usually of themselves would not lead to a gaol sentence not being imposed if it were otherwise warranted. Much depends on the circumstances. For example, a person may have but a short period to live or need intense treatment which cannot be provided in gaol. There may be circumstances where to keep a person in gaol will probably lead to his early death and this would not otherwise occur. The variety and combination of circumstances are legion. An appropriate balance has to be maintained between the criminality of the conduct in question and any damage to health or shortening of life. The Department of Corrective Services has the responsibility of providing for health care but there may be cases where what is required on a permanent basis extends beyond what it can provide and can be expected to provide. In almost all cases what the Department is able to provide will suffice. If gaol is significantly harder for a person because of difficulties due to health and age this would be a relevant matter to take into account.

61 There was no evidence to suggest that the respondent would not be treated in gaol. This was not a case where such treatment, albeit sub-optimal, was beyond the capacity of the Department of Corrective Services to provide. The respondent’s condition was not so serious that it justified the extension of the significant leniency inherent in an order for periodic detention. It was capable of giving rise to a finding of special circumstances.

62 In my view, notwithstanding the constraints that operate on Crown appeals, this Court should intervene to correct a manifestly inadequate sentence. The respondent’s criminality was only slightly below mid range. A sentence in the order of four years imprisonment on each count, with some slight accumulation, would have been within range at first instance. The least sentence that should be imposed is three years full-time imprisonment on each count. An aggregate sentence of less than three years and four months would fail to reflect the respondent’s criminality for the death of two people.

63 I propose the following orders :-

1. Appeal against conviction dismissed.
2. The sentences imposed by Graham ADCJ on 13 June 2008 are quashed.

3. On the first count, the respondent is sentenced to a non parole period of two years to date from 21 June 2008, expiring 20 June 2010, with a balance of term of one year, expiring 20 June 2011.

4. On the second count, the respondent is sentenced to a non parole period of two years, to date from 21 October 2008, expiring 20 October 2010, with a balance of term of one year, expiring 20 October 2011.

5. The disqualification period of three years from 3 April 2008 is confirmed.

64 MATHEWS AJ : I agree with Latham J.

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