R v Barnett

[2016] NSWDC 302

District Court

New South Wales

Medium Neutral Citation:	R v Steven Barnett [2016] NSWDC 302
Hearing dates:	2 September 2016, 16 September 2016
Date of orders:	16 September 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Yehia DCJ
Decision:	Order for an intensive correction order assessment
Catchwords:	Dangerous driving occasioning death; momentary inattention; intensive correction order; imprisonment as last resort
Legislation Cited:	Crimes Act 1900, s52A(1)(c) Crimes (Sentencing Procedure) Act 1999, ss 3A, 5(1), 21A
Cases Cited:	Hili v The Queen (2010) 242 CLR 520 Morabito v R [2007] NSWCCA 126 R v Davies [2000] NSWCCA 84 R v Errington (2005) 157 A Crim R 553 R v Foster [2001] NSWCCA 215 R v Jarad Smith [2016] NSWCCA 75 R v Jurisic (1998) 45 NSWLR 209 R v Khatter [2000] NSWCCA 32 R v Melissa McKeown [2013] NSWDC 22 R v Nahlous (2013) 228 A Crim R 503 R v Radley [2010] NSWCCA 64 R v Townsend [2010] NSWCCA 336 R v Whyte (2002) 55 NSWLR 252 R v Zamagias [2002] NSWCCA 17 Thai v R [2009] NSWCCA 314 Whelan v R (2012) 228 A Crim R 1 Zaky v R [2015] NSWCCA 161
Category:	Sentence
Parties:	Regina (Crown) Steven Barnett (Offender)
Representation:	Counsel: Ms D Daleo (Crown) Mr A Issacs (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Toner and May Legal (Offender)
File Number(s):	2014/132881
Publication restriction:	Nil

Judgment

1. Steven Barnett, the offender, stood trial at Sydney District Court in May 2016 for an offence of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900, an offence which carries a maximum penalty of ten years’ imprisonment.

2. On 16 May 2016 he was found guilty. The sentence proceedings highlighted the enormity of the tragedy that has seen a young woman taken from her family well before her time. That loss has caused considerable grief and heartache. The material tendered during the proceedings also highlights the offender’s prior good character, past responsible driving and considerable remorse.

3. In matters such as this Judges are asked to perform an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and a life should never be measured simply by the punishment meted out to an offender: R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22.

4. The sentence I impose does not and cannot measure the value of Brianna Stanford’s life. Instead it reflects the sentencing discretion informed by proper principle. It must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender. The sentence must also reflect the objective seriousness of the offence, the offender’s moral culpability, his prospects of rehabilitation and the likelihood or unlikelihood of future offending.

Facts

5. In determining the facts upon which I sentence Mr Barnett I am bound by the jury verdict. I must resolve any dispute in light of the evidence adduced at trial although such resolution by me is limited to matters collateral to the elements of the offence.

6. At approximately 1.15pm on 1 May 2014 the deceased was a passenger in a black Mazda being driven in a southerly direction on the M1 motorway from Terrigal to Sydney. The car was being driven by Michelle Short. As Ms Short approached the Hawkesbury River Bridge her car began to overheat.

7. That section of the M1 is a six lane road with three lanes of traffic flowing in each direction. There are no breakdown lanes on the bridge. Ms Short was travelling in lane one, being the lane closest to the outside of the bridge and furthest from the concrete barrier which divides the bridge between northbound and southbound lanes.

8. Mr Barnett was driving in a southerly direction in lane one. He was driving a Kenworth prime mover with attached trailer at approximately 100 kilometres per hour which was the legal speed limit for a heavy vehicle.

9. As a result of the car overheating the Mazda came to a stop in lane one. Mr Barnett collided with the rear of the Mazda whilst it was stationary in that position. The vehicle was caught under the prime mover and both vehicles travelled conjointly for approximately 105 metres before coming to rest.

10. A number of eye witnesses, including Ms Short, gave evidence during the trial. Once the Mazda came to a stop in lane one Ms Short was watching the traffic in her rear view mirror. She observed the offender’s truck coming up behind her and observed that he did not appear to be moving into the right hand lane. She got out of her car to attract his attention. When she looked at the offender she noted that his head was turned to his left.

11. A series of photographs were tendered in the trial which captured the moments before impact and post‑impact. Those photographs had been taken by Mr Thompson who was a recreational photographer. One of the photographs depicted the offender’s truck at a time when it was approximately 120 metres behind the stationary Mazda.

12. Mr Parker, an expert in motor vehicle collision reconstruction, gave evidence which I accept, that it was 270 metres between the start of the bridge and the point of collision. He gave evidence that a vehicle travelling at 100 kilometres per hour would travel approximately 27.7 metres per second. To cover a distance of 270 metres it would take approximately 9.5 seconds.

13. Having had regard to the physical evidence, Mr Parker opined that the offender did not see the stationary Mazda until he was between 36 and 43 metres away from it. Mr Parker also opined that the offender applied his brake at approximately the same time as impact between the two vehicles.

14. That expert opinion appears to be supported by the eye witness testimony of Mr Verdura who gave evidence that he was following the truck approaching the bridge. He was travelling at about 100 kilometres per hour. He started seeing the debris coming from the back of the truck and then saw the brake lights turned on.

15. Ms Sinnett gave evidence that she first noticed the Mazda when she was at the start of the bridge. At that time the Mazda was still in motion although observed to be slowing down. It was only as she continued to approach that she realised that the Mazda was actually stationary. She made this observation at a point over 200 metres away from the Mazda.

16. The offender participated in a record of interview with the police and I am satisfied having watched that interview that he was honest and endeavouring to do his best to answer questions.

17. The offender said that as he cleared the trees on the bridge he took his eyes off the road and looked out onto the water. He said,

“I was just going with the flow of the traffic, and thinking what a beautiful day it was, and looked across the blue of the water. All of a sudden, I don’t know why I looked across the water, I looked back and there was a car in front of me, and just, I hit it. It just, I couldn’t stop. I hit the brakes as hard as I could. I didn’t know what else to do”.

18. Prior to looking out onto the water he did not see the Mazda and was unaware that it had come to a stop. He acknowledged that he looked away when he should not have. He was unsure as to how long he had his eyes off the road estimating at one point that it might have been seconds.

19. There was little in dispute between the parties during the trial. Indeed the Crown case was in large part based upon the accused’s admission that he had taken his eyes off the road for a period to admire the view over the water and that upon looking back to the road he was unable to avoid the collision with the stationary Mazda.

20. The expert evidence called by the Crown was consistent with that account. The question at trial was whether that conduct constituted driving in a manner dangerous. This was quintessentially a jury question.

21. The only dispute as far as there is one is with respect to whether I can make a certain finding as to how long the offender had his eyes off the road. The Crown submits that if I accept the offender’s account and the expert evidence, he looked out onto the water once he cleared the trees and did not return his eyes to the roadway until he was between 36 to 43 metres away from the Mazda. Having regard to the evidence he had his eyes off the road for approximately 145 metres. At a speed of 27.7 metres a second that equates to a period of five seconds that he had his eyes off the road.

22. The offender submits that although he told the police that he looked away for some seconds, later in his interview he said that he could not remember how long he had his eyes off the road. Ms Short, when asked as to how long it was between getting out of the car and the collision, responded “it all happened in the blink of the second”.

23. The offender submits that I would proceed on the basis that he looked away from the road long enough for the jury to conclude that his conduct amounted to driving in a manner dangerous, however I would be unable to determine precisely how long that was.

24. Clearly the jury verdict reflects a conclusion that the offender had his eyes off the road long enough so that when he turned his attention back to the roadway he had insufficient time to avoid the collision. Put another way he failed to keep a proper lookout.

25. I proceed to sentence the offender on the basis that he took his eyes off the road for a period of some five seconds. That period was long enough to prevent him from being able to brake in time to avoid the collision. I am able to make that finding on the basis of the account given by the offender in his record of interview and the measurements and calculations made by the expert witness.

Objective Seriousness

26. In R v Whyte (2002) 55 NSWLR 252 the Court had occasion to review the terminology used in the guideline judgment in R v Jurisic (1998) 45 NSWLR 209. That terminology suggested a degree of prescription beyond its use as an indicator. The Court of Criminal Appeal emphasised that the guideline is a guide or a check. The sentence imposed in any given case will be determined by the exercise of a broad discretion taking into account all the relevant factors including the relevant factors pursuant to s 21A.

27. In Jurisic the Court promulgated a guideline where a plea of guilty was entered and there was present to a material degree any aggravating factor involving the conduct of the offender. For the offence of dangerous driving causing death the guideline promulgated was not less than three years imprisonment.

28. In Whyte the Court identified a number of characteristics common to offences of driving in a manner dangerous:

1. Young offender;

2. A person of good character with no or limited prior convictions;

3. The 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. A plea of guilty of limited utilitarian value.

29. In the present case the offender is not a young offender. I also bear in mind there was no plea of guilty. However as set out below the issues in the trial were confined.

30. Having identified the above characteristics the Court of Criminal Appeal said,

“The sentencing judge must give close attention to the degree of moral culpability involved. This is a critical component of the objective circumstances of the offence.”

31. The Court also held that a non-custodial sentence for an offence against s 52A should be exceptional and almost invariably confined to cases involving momentary inattention or misjudgment.

32. The Crown submits that there is not a dichotomy between matters characterised as momentary inattention cases and those characterised as abandonment of responsibility cases, but rather a continuum between the two when assessing moral culpability. In that regard the Crown relies upon the cases of R v Foster [2001] NSWCCA 215, R v Khatter [2000] NSWCCA 32 and R v Davies [2000] NSWCCA 84.

33. The authorities in this field recognise abandonment of responsibility as one method of describing a higher degree of moral culpability. I accept there is a wide spectrum of behaviour indicative of different levels of moral culpability and indeed of different degrees of abandonment. I also accept that a given case does not have to be assigned to one or other of the two pigeon holes marked respectively momentary inattention or misjudgment on the one hand and abandonment of responsibility on the other.

34. The offender submits that I would find that this is a case of momentary inattention and that the moral culpability is low. The Crown submits that the conduct involved is more than momentary inattention, although not abandonment of responsibility. Alternatively, the Crown submits that if I were to find momentary inattention the offender’s moral culpability cannot be described as low having regard to the fact that he was driving a heavy vehicle at 100 kilometres per hour.

35. The Crown relies upon the findings of the trial judge in the case of Morabito v R [2007] NSWCCA 126 as support for the proposition that in circumstances where a driver is driving a heavy vehicle at speed inattention is characterised as something more than momentary inattention. His Honour’s finding was obviously open having regard to the circumstances that existed in that particular case. However it does not necessarily follow that I would make the same finding in the present case.

36. I bear in mind that this offender was driving a heavy vehicle at speed when the collision occurred. I also bear in mind that an onerous duty is placed upon the drivers of heavy vehicles on highways because the potential for gross harm resulting from even momentary inattention is great.

37. However in the present case the offender took his eyes off the road for some seconds to admire the view over the water. There is no suggestion in this case that his inattention was the result of the distraction by looking at his phone, changing the dial on his radio or otherwise attending to something else whilst driving.

38. The offender’s conduct did not involve excessive speed, affectation by alcohol or drugs, erratic driving, fatigue, or any degree of abandonment of responsibility. Having examined the scene of the collision Detective McCormack also excluded the possibility of “driver misconduct”, by which he meant an absence of swerve avoidance or any intentional manoeuvre that contributed to the collision.

39. The officer conceded that there was no evidence to suggest that the offender had strayed outside of his lane either in the lead up to the bridge or on the bridge. To be clear the offender’s inattention was extremely serious particularly in view of the fact that he was driving a heavy vehicle at speed. However, I am of the view that his conduct constitutes momentary inattention. I bear in mind that a finding of momentary inattention does not automatically lead to a finding of low moral culpability. It depends upon the circumstances relevant to the offence.

40. In assessing the offender’s moral culpability I have had regard to the findings of facts set out above. There are no aggravating factors in this case. Although the offender was driving a heavy vehicle at speed his inattention was confined to taking his eyes off the road for a matter of seconds to admire the view over the water. He collided with the Mazda at a time when it was stationary in lane one having overheated, there being no breakdown lane.

41. Although the collision was as a result of the offender’s momentary inattention it resulted in catastrophic consequences. The emotional and psychological impact upon the deceased’s family is deep and profound. I have had regard to the contents of the victim impact statement in determining the appropriate penalty. I also bear in mind that the taking of human life by driving a motor vehicle dangerously is to be regarded as a crime of some seriousness.

Subjective case

42. The offender is a 43 year old man. He has had a positive upbringing having grown up in the Blue Mountains with his family. His childhood was largely preoccupied with the family’s horse riding business. He continues to have positive and close relationship with his parents and two siblings.

43. After completing school, the offender assisted with his family’s horse riding business for a while due to his father’s medical issues. Upon his father’s improvement he worked in a sawmill and became a forklift operator. Later, the offender bought the family business and operated it until 2003. He then worked as a truck driver and commenced working with Green Freight a few years prior to the commission of this offence.

44. The offender has an 18 year old daughter from a previous relationship and he has a two year old son with his wife.

45. The family resides on a rural property close to Albury. Since the incident, the offender ceased work and is the primary carer for his two year old son. The offender’s wife is currently the sole income earner for the family. In addition to caring for his son, the offender helps out with administrative tasks at his wife’s law practice.

46. The offender’s wife is a sole practitioner whose practice is in Albury which is about 50 kilometres away from their residence. It is a 35 to 45 minute drive. The offender gave evidence that his wife travels to a number of cities in the course of her work including Canberra, Melbourne, Sydney and also Wagga Wagga. The offender’s parents live approximately 450 kilometres from him which takes about five hours to drive. He gave evidence that his parents are in poor health: his father has a bad back, his mother has been diagnosed with breast cancer and her prognosis is poor. His father-in-law has passed away.

47. The offender gave evidence that he has the primary care of his son. If he were to receive a full time custodial sentence his son would have to go into full time care as his wife would be the sole breadwinner. He gave evidence that he did not know of anyone who could look after his son on a full time basis. His mother-in-law, who lives in Bowral, has advised both the offender and his wife that she is not willing to look after the child in the event that the offender receives a fulltime custodial sentence.

48. The offender has throughout his life volunteered his time and resources to his community. His involvement with the Fire Brigade is referred to in exhibit 2, the highlighted portions of an extract from a book entitled, ‘The Spark of Megalong’. The offender’s father had been involved with the Megalong brigade for over 20 years and held the position of deputy captain for a number of years. The offender likewise joined the brigade and held the position of deputy captain. For many years the offender and his father worked at the Sugar Loaf Sawmill and were the first on call in the case of a fire. The offender gave evidence consistent with the contents of this extract. He said that his business was next door to the fire shed and that he was the first on call whenever a triple-0 call had been received. He was extremely active in the brigade during that time.

49. Since the commission of the offence, the offender has continued to volunteer his time to community events and organisations. Although he is a member of the local fire brigade he has deemed himself unfit for that role and has taken a step back with respect to his involvement as “I don’t know if something happens out there in the field how it would affect me and the effect it would cause to others on the ground.”

50. He currently spends his time maintaining the family business of breeding, showing and training border collies whilst remaining involved in community based activities.

51. A number of character references were tendered in the sentence proceedings including evidence given by Ms Linda Bowen.

52. Ms Bowen was employed at Green Freight between 23 June 2010 and December 2014. She initially worked in the position of the Group Human Resources Safety and Compliance Manager and eventually became operations manager. While she was in the role of the Group Human Resource Safety and Compliance Manager she was the offender’s primary contact with regards to employment issues. When she became the Operations Manager, she became the offender’s direct supervisor and was responsible for scheduling trucks, loads and drivers.

42. The offender on average drove 5,000 kilometres per week. Ms Bowen said that he was “one of the best drivers at Green Freight” and that when new drivers joined the company she hoped that they would emulate the way he worked. Her evidence was that his logbook was always perfect and so was his paperwork. She said that they never had any issues with pallet dockets or missing paperwork and his diary books were filled out completely. She also noted how clean, neat and tidy the offender kept his truck and that his repair records were always completed on time.

43. Ms Bowen never received any complaint from the police or from the public about the manner in which the offender drove the trucks. She also gave evidence that she never had any report that caused her any concern about the offender’s driving. She gave evidence that she had never seen the offender act negligently when undertaking his duties as a driver or indeed in any aspect of his work. She said that she had never seen him take risks either professionally or privately and described him as “a true professional driver”.

44. On an occasion when the offender came into the Green Freight office following the collision she observed him to be physically shaken and required the assistance of his wife.

45. Ms Bowen described him as a good family man who was “a very honourable person.”

46. This description is repeated throughout the 12 character references I have received. The references all attest to the fact that he is a caring family man, a doting father, someone who is always willing to lend a hand and a person who is very involved in his community. It is evident from the references that he is a generous, loving and unselfish person who is held in high regard by members of his community.

47. Character evidence was also provided from a number of witnesses on the last occasion the matter was before me. Ms Alexandra Wearne gave evidence that the offender took his son to the library and swimming lessons. She also stated that the offender studied practice management to assist his wife in her law firm.

48. Melanie Kelly has known the offender for some 20 years from the period of time he lived in Megalong. She used to spend a lot of time with him and had occasion to observe his general character. She now sees the offender and his wife on a monthly basis. She also attested to his good character and described him as a person who “can’t do enough for friends and family”.

49. A number of other character referees made reference to the offender’s participation in the Woomargama Common Association. The offender himself gave evidence that as a member of that association he undertakes voluntary work such as fencing, drenching, bringing in cattle, building yards and anything else that is required of him.

Mental health issues

61. The offender had not suffered any mental health issues prior to the commission of this offence. He did not have any abuse, trauma or neglect as a child and has never had psychological or psychiatric treatment prior to the collision.

62. As a result of the offence, however, he has experienced significant mental health issues. He has commenced counselling and has attended approximately 30 counselling sessions with Eva Goes. Ms Goes identified that the offender has suffered from nightmares, sleeping problems and acute distress as a result of the collision.

63. Dr Cara Tucker’s psychological report makes reference to a report prepared by Dr John Douglas. Dr Tucker stated that Dr Douglas evaluated the offender and opined that he suffered psychiatric symptoms consistent with post‑traumatic stress disorder.

64. Dr Tucker noted that the offender’s psychological treatment with Ms Goes has proved successful in significantly lowering his post-traumatic stress disorder symptoms such that he no longer meets the diagnostic criteria. Dr Tucker noted that the offender appeared to have benefited from early intervention and a course of psychological therapy with respect to his condition. Further, the offender told Dr Tucker that he believed counselling was crucial in improving his symptoms.

65. The offender reports ongoing difficulties with intrusive memories and marked hyper vigilance while a passenger in a motor vehicle. The offender reported to Dr Tucker that he still has startled responses if he sees a car too close in front of him or experiences a re-enactment of braking and putting his foot to the floor.

66. Dr Tucker opined that these occasional experiences suggest residual symptoms of post-traumatic stress disorder. In Dr Tucker’s opinion, the offender has residual non-clinical levels of post-traumatic stress disorder symptoms. He does not currently take any medication for his condition.

67. The presentence report that has been tendered in the proceedings notes that the offender struggles to maintain a social life. This is touched upon by a number of the character references.

Other health issues (ocular myasthenia gravis)

68. The offender was diagnosed with ocular myasthenia gravis about five years ago and receives transfusions monthly. Further detail regarding this condition is provided by Dr Ring. In his written document, the doctor stated that the condition is an “immune condition causing double vision and eyelid drooping.” The offender “requires monthly intravenous drugs to maintain function.”

69. Dr Ring opined that there is a chance he will develop generalised myasthenia gravis where the disease can involve other muscles of the body weakening. He stated that the condition is “an unpredictable disease” and that the offender “requires an increased dose of his intravenous medication to control his ocular symptoms.”

70. The offender gave evidence in relation to this condition and the effect it has had on him. He also outlined the treatment he is receiving for it. A handwritten letter prepared by Registered Nurse Amy Tilders confirms the evidence given by the offender. She stated that:

“[o]n admission… [the offender] requires a full set of vital sings to be attended. This includes checking blood pressure, heart rate, respiratory rate, temperature and oxygen saturations… The infusion is commenced slowly and gradually increased to the maximum rate as per hospital protocol… This process takes approx. 5-6 hours to complete. [The offender] is discharged home 20 mins after completion of the infusion if well.”

71. Further evidence adduced today from Dr Ring confirms that the offender has been in the doctor’s care since May 2012 when he was first diagnosed with this condition. He confirmed the description of the disease as an auto immune condition which leads to the weakening of the limbs and body function.

72. The disease has manifested itself in this offender by causing eyelid dropping and double vision. The doctor confirmed that the offender requires monthly intravenous injections to maintain function and that the dose of his medication has progressively increased since 2013 from 40 grams to 75 grams per month.

73. Dr Ring agreed that the increase in dosage resulted from the worsening of symptoms. He described the unpredictable nature of the disease and gave evidence that although the symptoms in the offender are localised to eye muscles, they could potential generalise to the limbs, and breathing and swallowing muscles. It is difficult to predict whether the condition would develop in that way in the offender. If it did, any such development would be sudden and unpredictable.

74. Dr Ring confirmed that there is no cure for this condition. He accepted in cross-examination that most people who suffer from the disease can lead normal healthy lives and that having regard to the offender’s history, there is a low risk that the disease would develop to a point where his respiratory capacity would be compromised. However, the doctor also conceded that he could not exclude the possibility of such risk.

75. I am not satisfied that the offender’s medical condition is such as to establish exceptional circumstances itself warranting a non-custodial penalty. However, I do take it into account in assessing the weight to be given to his subjective case.

Attitude to offending/remorse

76. The evidence adduced at trial disclosed the offender’s distress following the collision. He gave evidence during the sentence proceedings that he feels “so sorry for the family”; that he has “two children of [his] own… an older daughter and a younger son and to lose either of those would be absolutely devastating on [his] life”. He said he “can only imagine what the family are feeling and it would be absolutely terrible, devastating...” He said, “It would tear me apart and the accident in itself has already torn me apart.” He accepted the jury’s verdict of guilty and accepted his responsibility in relation to the offence.

77. In cross-examination the offender accepted that the collision occurred because he looked out over the water for a period of time and therefore did not have his eyes on the road. He agreed that when he turned back to the road, he did not have time to stop and he also agreed that as a result, the collision occurred. He agreed that had he been looking on the roadway at all times the collision would have been avoided.

78. Dr Tucker noted that the offender expressed sincere regret and demonstrated significant remorse for the collision. The offender reported that reminders of that day surface regularly. He is reminded of the reality that he cannot take back the loss of a human life. He told Dr Tucker that he thinks about the deceased every day and wishes that she had not died. He said that he can only imagine the distress and loss felt by her family and friends who must miss her. Dr Tucker opined that the reality of being responsible for someone’s death has been a significant moral injury for the offender and contributes to the residual symptoms of post-traumatic stress disorder. Dr Tucker further opined that the offender accepts full responsibility for the offence.

79. I am satisfied that the offender’s remorse and contrition are both significant and genuine.

Prospects of rehabilitation / risk of re-offending

80. The offender is well supported by family and friends and is held in high regard for his involvement with community activities and organisations. He has been assessed as a low risk of reoffending.

81. The author of the presentence report states that the offender is unlikely to benefit from a period of supervision by Community Corrections given his low level of risk and limited criminogenic factors. It was noted that the offender does not need the assistance from Community Corrections because he is capable of identifying and seeking treatment of his own accord.

82. Dr Tucker pointed to the offender’s pro social and community minded history, his commitment to his family, his successful participation in psychological treatment, his commitment to returning to meaningful work in the future and his remorse in concluding that the offender poses minimal risk of reoffending. The offender has no prior criminal record. He has three minor speeding offences on his traffic record, the last being in 2004.

83. I am satisfied that the offender is rehabilitated and has been profoundly affected by the consequences of his actions. I am also satisfied that he is unlikely to reoffend. The weight to be given to specific deterrence is significantly moderated in this case.

84. The evidence of the offender’s background establishes more than an absence of prior offending and general good character. The evidence establishes that during his employment as a truck driver for a period, on my estimation, of some 12 years, he always undertook his duties responsibly. He was vigilant with respect to maintenance of the vehicles he drove and vigilant with respect to adequate sleep and appropriate rest breaks. He has demonstrated a long history of responsible attitude towards his work and his duties as a driver prior to the time of this collision. He is therefore entitled to a degree of leniency.

85. The Crown submits that I would have regard to the total history of the matter and the fact that this is the second trial in finding that the offender is not entitled to any reduction in sentence.

86. I am satisfied that the offender is not entitled to a reduction in his sentence in light of the fact that he did not enter a plea of guilty. However, he is not to be punished simply because he ran his trial.

87. I have taken into account that the issues at trial conducted before me were confined. The cross-examination of the witnesses was not extensive and submissions were focussed to the central issue being whether the manner of driving established the essential elements beyond reasonable doubt. Whilst I do not take these matters into account in extending a reduction in the sentence, they are relevant in my view to issues of remorse and contrition.

88. The offender submits that the hardship to his two year old son is exceptional and calls for a significant measure of leniency. I accept that the evidence establishes that if the offender were taken into custody some hardship would flow to his wife and indeed his son. No assistance is forthcoming from family members. The offender’s wife will either have to restructure her work practice, which may prove difficult, or decide to place the child in day-care. I also bear in mind the fact that the offender is the primary caregiver and his removal from the family unit will cause some hardship to the child.

89. Having considered the matter at some length, however, I am not of the view that the hardship to third parties in this case is exceptional. I have taken into account the evidence relating to the close bond between the offender and his child and his role as the primary caregiver in assessing the weight to be given to his subjective case.

90. Hardship to third parties is not, however, determinative of the matters I have to decide. These matters include whether the section 5 threshold has been met and, if so, the appropriate length of any term of imprisonment and, if two years or less, whether it could be served by way other than fulltime custody.

91. A number of comparable cases were placed before me and they can be summarised as follows.

92. In the decision of Thai v R [2009] NSWCCA 314a plea of guilty was entered on the first day of trial. The case involved momentary inattention resulting in the appellant running a red light. He had no prior convictions and committed the offence at a time when he was distressed due to the death of his wife. Following an assessment of low moral culpability, the Court held that the sentence imposed at first instance was excessive. He was resentenced to a period of 15 months periodic detention.

93. In R v Radley [2010] NSWCCA 64, the Crown unsuccessfully appealed the sentence of 16 months periodic detention. In that case the offender had attempted to overtake a motor vehicle crossing to the wrong side of the road.

94. In R v Townsend [2010] NSWCCA 336, the respondent pleaded guilty and was dealt with by way of 300 hours community service work for an offence of driving in a manner dangerous to cause death. He had drifted over double lines and in negotiating a bend on the road collided with the other vehicle. The sentencing judge found momentary inattention and low moral culpability. The Crown appeal was dismissed.

95. In Whelan v R (2012) 228 A Crim R 1, the respondent was found guilty after trial. His car had collided with an oncoming vehicle as he tried to overtake another vehicle. The pregnant passenger in the oncoming vehicle suffered a separated placenta causing the foetus to be born prematurely. The baby died some 33 days later. The issue at trial appears to have been causation. A finding of low moral culpability was made by the sentencing judge. The respondent was dealt with by way of two years intensive corrections order. The Crown appeal was dismissed.

96. The Crown relied upon two decisions of the Court of Criminal Appeal. As I understand the Crown’s submission, the cases are relied upon to support the contention that there is a continuum between the two categories of momentary inattention and abandonment of responsibility rather than relying on them for the sentences imposed. However, for completeness, I note that in the decision of R v Errington (2005) 157 A Crim R 553 following a 25% reduction to reflect the utilitarian value of the plea of guilty, the appellant was sentenced to a term of imprisonment fulltime of 18 months. In that case, the appellant was driving a prime mover at 60 or 70 kilometres per hour when he collided with the last vehicle in a line of traffic which had stopped at red lights. A number of cars were extensively damaged, some people were trapped in their vehicles and had to be released by rescue personnel. One person died.

97. In Morabito v R [2007] NSWCCA 126, the appellant was sentenced with respect to three counts of driving in a manner dangerous to cause death and one count of driving in a manner dangerous causing grievous bodily harm. The total effective sentence imposed by the sentencing judge was one of three years and three months for all matters with a non-parole period of 15 months. The criminality involved in that case was significantly more than in the present.

98. I bear in mind that the sentences imposed in other cases and sentencing patterns are of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellant Courts but the range of sentences that have been imposed in past cases does not fix the boundaries within which future judges must, or even ought, to sentence: Hili v The Queen (2010) 242 CLR 520.

99. In Whelan, Allsop P acknowledged that the consideration and choice of a sentence for an offence contrary to s 52A often involves the possibility of sentencing an offender of otherwise good character to what he described as “the potentially catastrophic consequences of imprisonment”. The authorities emphasise that driving a motor vehicle, particularly a heavy vehicle brings with it great responsibility and the community expects such instruments of danger to be controlled responsibly. Generally, principles of general and specific deterrence are important as is public denunciation of dangerous driving. These considerations must be given their due weight in the present case although for the reasons stated above, the weight to be given to specific deterrence is significantly moderated.

100. However, Allsop P emphasised that giving weight to deterrence and public denunciation does not require that every error of judgment, tragic as its consequences are, be met with incarceration.

101. I bear in mind that the offender’s momentary inattention took place at a time when he was driving a heavy vehicle at 100 kilometres per hour. Although his moral culpability is low, having regard to all of the circumstances, it cannot be said to be at the lowest end of the range. Furthermore, I bear in mind that his conduct caused the death of a young woman, a loss that has been devastating for a family.

102. I am satisfied having regard to those matters that the section 5 threshold has been met. The sentence I impose must reflect the various aspects involved including the guideline judgment. The guideline provided by an appellate Court is not, however, prescriptive. I am obliged to have regard to individualised justice and impose a sentence that is proportional in all of the circumstances.

103. I am satisfied having regard to the offender’s low moral culpability, the objective seriousness of the offence and his compelling subjective case, that a period of two years imprisonment is warranted.

104. I turn to consider whether the term of imprisonment can be served by way other than fulltime custody. I am not of the view that a suspended sentence is appropriate in the circumstances having regard to the fact that it cannot be said that his conduct was at the lowest level of moral culpability.

105. I turn to consider the appropriateness of an intensive corrections order. Whilst an intensive corrections order may reflect a significant degree of leniency, given that an intensive correction order is considered as a form of imprisonment, it must have a significant punitive effect and therefore reflect in all likelihood a range of purposes identified in s 3A of the Crimes (Sentencing Procedure) Act: R v Tannous (2012) 227 A Crim R 251.

80. The Court of Criminal Appeal in R v Pogson (2012) 82 NSWLR 60 said that an intensive corrections order is a punishment which can be utilised in the appropriate case.

81. Recently in R v Cahill [2015] NSWCCA 53, the Court emphasised that it is important not to lose sight of the need for an appropriate and proportionate level of punishment in the form of immediate incarceration in cases involving serious offending. The Court on that occasion said that the decision in Pogson should not be utilised to pass an entirely inappropriate sentence by reason of the offender being dealt with in a way that is contrary to the principle of reasonable proportionality between the offending conduct and the sentence.

82. I am not of the view that the imposition of an intensive corrections order in this case would fail to apply that principle. Furthermore, I am mindful that it is appropriate to consider the regulations to understand how the legislative scheme is to operate with respect to such an order. The mandatory conditions operate to impose significant restrictions on an offender’s freedom. The stringent conditions deprive an offender of his liberty in a real sense and the consequence of a breach of the conditions can result in an offender serving the balance of sentence in fulltime custody.

83. I am satisfied that the various purposes of sentencing can be fulfilled by imposing a period of imprisonment of two years to be served by way of an intensive corrections order. The offender will have a term of imprisonment hanging over his head and will be subject to very onerous conditions whilst on that community based order. This will serve the purposes of deterrence and having regard to all of the material before me, fulfil the purpose of denunciation, rehabilitation and the protection of the community.

84. In the present case, having determined that the offender’s moral culpability is low and having regard to his compelling subjective case, I am satisfied in all the circumstances that this is an appropriate way to dispose of the matter. In doing so, I do not lose sight of the fact that his conduct has resulted in the death of a young woman well before her time. The sentence is not intended to detract from the premium the law places on a human life. Instead, it reflects a proportionate sentence having regard to all of the relevant factors. The proceedings will therefore have to be adjourned for an assessment.

I understand that a period of at least six weeks is required so that will take us to either 28 October or 4 November.

ISAACS: Your Honour, I will just seek some instructions just on that very point.

DALEO: Your Honour, 28 October would suit the Crown.

HER HONOUR: Yes.

ISAACS: That may be the difficulty, as I do not think it will suit me, I will just check.

HER HONOUR: I have given the sentence judgment. I would not require any further submissions unless the intensive corrections assessment is not favourable.

ISAACS: Indeed, but we may not--

HER HONOUR: It seems to me that I have given full reasons. If it is favourable, then I would impose that sentence. If it is not favourable, then I would have to hear further submissions with respect to the position of the matter.

ISAACS: Your Honour, my preference is for 4 November if possible.

HER HONOUR: Madam Crown, are you available on 4 November?

DALEO: Your Honour, I have a ten complainant trial due to start on 31 October but 4 November is - what day of the week?

ISAACS: A Friday.

DALEO: Friday. Would your Honour, 2 o’clock?

HER HONOUR: Yes.

DALEO: Thank you, your Honour.

HER HONOUR: I will adjourn the matter to 4 November 2016. I will say not before 2pm at the Sydney District Court and I will make an order for an ICO assessment.

ISAACS: Your Honour, there is one matter which wasn’t dealt with in submissions but it is a natural consequence of any action your Honour takes and that is in relation to the period of suspension of the licence.

HER HONOUR: As I understand it, there is an automatic period of three years with a minimum of 12 months, is that right?

ISAACS: That’s correct but it may be I think under the legislation the question of when you date that to start from.

HER HONOUR: I don’t know that I have any power. This is a matter that perhaps could be dealt with on the next occasion. I don’t know that I have any power to back date a disqualification period. I am not going to take submissions about that now. It can be dealt with on the next occasion.

ISAAC: I will look at the matter and see if there is any basis to assist you in that regard.

HER HONOUR: Thank you. I will continue Mr Barnett’s bail in the meantime. He does not have bail, thank you.

DALEO: Would your Honour consider, your Honour will need to make an order that he attend the Community Corrections at Albury, I believe, for the purposes of preparing the report.

HER HONOUR: I will certainly direct that Mr Barnett attend the Albury office of Community Corrections within seven days of today to facilitate the preparation of that assessment.

ISAACS: That is appropriate.

HER HONOUR: Can I just take the opportunity to thank you both for your assistance in this matter.

ADJOURNED TO FRIDAY 4 NOVEMBER 2016

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