R v Crockford

[2020] NSWDC 628

District Court

New South Wales

Medium Neutral Citation:

R v Crockford [2020] NSWDC 628

Hearing dates:

25 June 2020

Date of orders:

24 September 2020

Decision date:

24 September 2020

Jurisdiction:

Criminal

Before:

N L Williams DCJ

Decision:

Sentence –

Aggregate Sentence of Imprisonment for 9 years 6 months

Non-Parole Period of 5 years 4 months

License Disqualification for a period of 12 months

Indicative Sentences:

Count 1: 4 years

Count 2: 4 years

Count 3: 2 years 10 months

Count 4: 1 year 2 months

Count 5: 2 years 10 months

Count 6: 1 year 2 months

Count 7: 2 years 10 months

Count 8: 1 year 2 months

Count 9: 1 year 2 months

Count 10: 1 year 2 months

Count 11: 1 year 2 months

Count 12: 1 year 2 months

S 166 matters taken into account

2 months indicative sentence for each S 166 matter

Catchwords:

Dangerous Driving Occasioning Death; Dangerous Driving Occasioning Grievous Bodily Harm; Cause Bodily Harm by Misconduct in Charge of a Motor Vehicle; Wanton Driving;

Legislation Cited:

Crimes (Sentencing Procedure) Act (NSW) 1999

Heavy Vehicle National Law (NSW) 2013

Cases Cited:

Merrick v R [2017] NSWCCA 264

Preston v R [2011] NSWCCA 25

Richards v R [2006] NSWCCA 262

R v Besant [2003] NSWCCA 388

R v Clampitt-Wotton [2002] NSWCCA 383

R v Errington [2005] NSWCCA 348

R v Janceski [2005] NSWCCA 288

R v Jurisic (1998) 45 NSWLR 209

R v Khatter [2000] NSWCCA 32

R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep

R v Takai (2004) 149 A Crim R 593

R v Whyte (2002) 55 NSWLR 252

Texts Cited:

-

Category:

Sentence

Parties:

Regina (Crown)
Robert Crockford (Offender)

Representation:

Counsel:
Mark Davies (Crown)
Jack Tyler-Stott

Solicitors:
Amy Lonsdale (Crown)
Anthony Corigliano (Crown)
Elizabeth Wye
Jack Leitner

File Number(s):

2018/36464

Publication restriction:

Suppression Order relating to any mention of offender’s childhood

Judgment

Acknowledgment

1. At the commencement of this judgment the Court pauses to acknowledge that this is a matter which has irrevocably changed the lives of many people and the lives of many people in the communities in which the victims, their families and friends live.

2. Hannah Ferguson and Reagan Skinner were tragically killed that day. The Court extends its most sincere condolences to their family and friends and acknowledges the enormity of their loss.

3. Connah Mathews, Julie Marshall and Carly Millgate all suffered grievous bodily injury as a result of the collision.

4. Nicholas Rutley, Natalie Dunstan, Allanah Millgate, Jahmaine Reid, JK (an infant), Kurt Meers, and Christopher Chown, all suffered bodily harm as a result of the collision.

5. The Court acknowledges the enormity of the impact of the collision on each and every one of the victims, their families, their friends, the other witnesses and motorists involved and the first responders including local farmers, paramedics, police, and rescue operations personnel.

Background

6. The offender Robert Crockford comes before the Court to be sentenced after being found guilty at trial of:

1. Two counts of ‘Dangerous Driving Occasioning Death’

2. Three counts of ‘Dangerous Driving Occasioning GBH’

3. Seven counts of ‘Cause Bodily Harm by Misconduct – Wanton Driving’

S 166 Matters

7. There are a further 3 related offences set out on the s 166 Certificate, as follows:

1. Sequence 15 – Solo driver rest less than standard minimum time – minor risk

2. Sequence 16 – Solo driver rest less than standard minimum time – critical risk

3. Sequence 18 – Driver not wear seatbelt properly adjusted/fastened

Maximum penalty

8. The offences pursuant to s 52A(1)(c) (dangerous driving occasioning death) carry a maximum penalty of 10 years, and an automatic disqualification period of 3 years, with a minimum disqualification period of 12 months.

9. The offences pursuant to s 52A(3)(c) (dangerous driving occasioning GBH) carry a maximum penalty of 7 years, and an automatic disqualification period of 3 years, with a minimum disqualification period of 12 months.

10. The offences pursuant to s 53 (cause bodily harm by misconduct – wanton driving) carry a maximum penalty of 2 years, and automatic disqualification period of 3 years, with a minimum disqualification period of 12 months.

Identification of material tendered on sentence

11. The Crown tendered a sentence bundle including:

1. Facts consistent with the jury verdict,

2. NSW criminal history

3. Custodial history

4. QLD criminal history

5. NSW Traffic History

6. QLD Traffic History

7. Justice Health and Forensic Mental Health Network Report

8. Justice Health Materials

9. Victim Impact Statements

12. The Crown also tendered:

1. A Sentencing Assessment Report (SAR)

2. CSNSW Response to COVID-19 Summary Statement

3. Facts consistent with the s 166 matters

13. Written submissions were made on behalf of the Crown, and supplemented by oral submissions on 25 June 2020.

14. The defence case included:

1. A psychiatric report under the hand of Dr Olav Nielssen, dated 10 June 2020

2. A letter from the offender

3. Character references for the offender

4. A report by Dr Peter Johnstone, Orthopaedic Surgeon

15. Oral submissions were made by Mr Tyler-Stott on behalf of the offender on 25 June 2020.

Criminal History

16. The Offender has no record of previous convictions in NSW or QLD. This is to his credit, and contributes to his good prospects of rehabilitation.

Traffic Record

17. The offender has been subject to driving infringements in the past, which were dealt with by the Roads and Maritime Service, NSW. These infringements have included:

1. Exceeding the speed limit by more than 10km/h but less than 20km/h (2016)

2. Driving an unregistered heavy vehicle (2014)

3. Exceeding the speed limit by not more than 10km/h whilst driving a coach or heavy vehicle (2013)

4. Negligent Driving (2004 and (2002)

5. Exceeding the speed limit by more than 15km/h but less than 30km/h (2002 x 2, 1994, 1988, 1986)

6. Exceeding the speed limit by not more than 15km/h (1997)

7. Drive offside separation line (1989, 1986)

18. The offender also had one charge of exceeding the speed limit by more than 15km/h but less than 30km/h dealt with by the Kempsey Court in 1989.

19. The offender further had the following record in QLD:

1. Exceed speed limit in speed zone by less than 13km/h (2012 and 2016)

2. Exceed speed limit in speed zone by at least 13km/h but not more than 20km/h (2015 x 3, 2016, 2017)

Time in custody

20. The offender has served time in custody for these matters, namely between:

1. 03/02/2018 – 23/08/2020, and

2. 23/03/2020 – 24/9/2020,

21. This is a total combined period of 12 months and 23 days (as at 24/9/20).

22. I have taken this time in custody into account.

Facts Consistent with Verdict

23. The facts consistent with the jury’s verdict of 23/3/2020 are as follows:

1. The offender was a truck driver employed by ‘ALG Equipment Hire’ trading as ‘Goodall Transport,’ a transport company based in QLD.

2. The offender held a QLD Heavy Vehicle drivers licence and had been employed with ‘Goodall Transport’ since 2017.

3. The offender had been a professional truck driver since he was aged 22-23 years. Throughout his career, the offender had driven trucks such as tow trucks, Pantech trucks, semi-trailers, b-doubles, heavy rigid trucks, and tipper trucks.

Evening of 14 January and Day of 15 January 2020

24. The offender and the witness, Robert Scott, had been booked to transport two loads of pre-fabricated concrete panels from Carole Park, QLD to the Australian National University in Canberra, ACT. This is a distance of approximately 12,000km.

25. The offender and Mr Scott were expecting to load during the morning of 15 January and unload the morning of 17 January.

26. The offender was driving an ‘Argosy Freightliner’ prime mover with a ‘Halmark’ tri-axle heavy vehicle trailer (QLD registration 008 QUX). The offender’s truck, trailer, and load weighed approximately 35 tonnes.

27. During the evening of 14 January 2018, the offender was awake messaging his partner and accessing the internet on his mobile phone until about 12:40am (being now, 15 January 2018).

28. The offender turned on his truck at 5:25am on 15 January, consistent with a maximum sleep time of 4h 45mins.

29. At about 5:40am the offender drove his heavy vehicle from the ‘Goodall Transport’ depot to the ‘Precast Concrete’ depot in Carole Park, QLD, a distance of 50km, arriving at approximately 7:20am.

30. The offender and Mr Scott left the depot at approximately midday 15 January 2018, crossing the border into NSW at Goondiwindi/Boggabilla at approximately 5pm on 15 January 2018.

Evening of 15 January and Morning of 16 January 2018

31. At approximately 6:50pm, the offender and Mr Scott stopped for the evening at Gurley, a small village 20km south of Moree. They went to the Gurley Pub for dinner and a shower. The offender and Mr Scott ate dinner, with the offender consuming 5 cans of premixed Bundaberg Rum and Coke during the evening, equating to approximately 7 standard drinks.

32. After the meal, the offender, Mr Scott, the publican and his wife, and another local man visited some hot springs on a private property. They returned to the pub shortly before 12am on 15 January 2018. The offender retired to his truck.

33. The offender stayed awake until at least 1:30am (being now, 16 January 2018) looking at the internet on his mobile phone. The offender started his truck at 7:17am on 16 January 2018, apparently with a maximum sleep time of 5h 45mins.

34. In addition to the reduced hours of sleep the offender had in the two nights prior to the collision, his sleep was affected by his alcohol consumption on 15 January 2018 and his undiagnosed sleep apnoea. The offender told doctors in the days following the offending that he experienced sleepiness during the days leading up to the collision.

35. On the morning of 16 January 2018, the offender was tired as he left Gurley and headed south on the Newell Highway. During the drive between Gurley and Gilgandra, a distance of approximately 290km, the offender and Mr Scott spoke via the CB radio regularly.

36. At approximately 11am the two men stopped at a truck stop in Gilgandra where they ate breakfast. They stopped here for approximately 55 minutes. At 11:55am the offender left the truck stop followed by Mr Scott. They continued south along the Newell highway, approaching roadworks approximately 20km north of Dubbo, NSW.

37. The relevant portion of the Newell highway is a rural highway with one lane of travel in each direction. The speed limit is usually 110km/hr; however on 16 January 2018 the speed limit incrementally decreased leading up to the roadworks. The road was sealed and in good condition. The weather was clear and dry with normal visibility.

Line of Traffic

38. As the offender drove south on the Newell Highway, a line of traffic was stopped as directed at the roadworks in the south bound lane. There were 5-6 uninvolved cars stopped at the traffic controller, followed by a number of cars that were impacted by the offending.

39. The impacted vehicles were as follows:

1. A Toyota Camry (AH1 1SS, NSW) containing Hannah Ferguson (driver) and Reagan Skinner (front passenger).

2. Next, a Suzuki Vitara (AU7 2LZ, NSW) driven by Connah Matthews,

3. Next, a Holden Commodore (CH9 7ZM NSW) with Nicholas Rutley (driver), Julie Marshall (front passenger), and Natalie Dunstan (rear passenger),

4. Next, a Toyota Camry (CO0 2PZ, NSW) with Allanah Millgate (driver), Carly Millgate (front passenger), Jahmaine Reid (rear passenger), and an infant, JK (rear passenger),

5. Next, a Western Star Prime Mover (CH0-1EB, NSW) towing a heavy vehicle trailer (Z88 334, NSW), driven by Kurt Meers. The trailer contained 40 tonnes of chickpeas,

6. Furthest from the offender’s vehicle was a Volkswagen Amarok (CPZ-46P, NSW) driven by Christopher Chown,

The Collision

40. On the drive between Gilgandra and the collision site the offender was fatigued and suffering micro-sleeps.

41. On a number of occasions, the offender’s truck wandered in and out of the southbound lane of the Newell Highway. This became more frequent and pronounced during the three minutes immediately preceding the collision.

42. Approximately 1.8km (1 min 14 secs) from the point of impact, there was a large yellow sign with a red sign below indicating ‘roadwork ahead’ and ‘wide load contact site on UHF 15.’

43. At 1.7km prior to impact, there was an electronic sign flashing between ‘traffic queue ahead’ and ‘reduce speed,’ with a red sign indicating ‘prepare to stop’ slightly behind the electronic sign.

44. At 1.63km prior to impact, there was an ’80 ahead’ speed sign.

45. At 1.35km prior to impact, there was an ’80 roadwork’ sign with a ‘shoulder closed’ sign slightly behind that.

46. At 180m prior to impact, there was a yellow and black ‘speed bump’ warning sign.

47. At 130m prior to impact, there was another ‘speed bump’ warning sign with an orange ‘workman’ sign and a ’60 roadwork’ sign with 2 ‘speed bumps’ on the road.

48. Approximately 45m prior to impact, there was a red ‘prepare to stop’ sign.

49. The impact occurred slightly before the commencement of the 40km/hr zone.

50. The offender’s speed for the period from 2 mins prior to the collision until the point of impact is illustrated in a graph at Trial Exhibit 15. This exhibit shows the offender’s vehicle slowing from approximately 100km/hr to approximately 85km/hr as it passed the first 80 speed limit sign. The vehicle then increases to 90km/hr as it passes the second 80 speed limit sign, before decreasing to approximately 85 km/hr as the stationary vehicles became visible. The vehicle maintained a speed of approximately 85 km/hr between that point and the collision.

51. The offender did not brake, swerve, decelerate, or take any evasive action. The offender’s vehicle collided with the rear of the Toyota Camry (AH1 1SS, NSW) with its occupants Hannah Ferguson and Reagan Skinner at about 86 km/hr.

52. The force of this impact caused the nearside and rear of the Camry to be torn from the vehicle, and the remains of the vehicle to spin into the northbound lane of the highway and across onto the western verge.

53. The offender’s vehicle then collided with the Suzuki Vitara, with its occupant Connah Matthews, travelling over the Vitara and jamming it underneath the offender’s vehicle. The Vitara remained underneath the offender’s vehicle as it collided with further vehicles.

54. The offender’s vehicle then collided with the rear of the Holden Commodore, with occupants Nicholas Rutley, Julie Marshall, and Natalie Dunstan, pushing it into the rear of the second Toyota Camry with occupants Allanah Millgate, Carly Millgate, Jahmaine Reid, and the infant, JK. The Commodore was shunted into the northbound lane of the highway and across to the western verge.

55. After the Commodore had been shunted clear, the offender’s vehicle continued through the line of traffic and impacted with the rear of the second Toyota Camry (as above), pushing the Camry into the rear of the Western Star B Double driven by Kurt Meers, before shunting the Camry into the northbound lane of the highway.

56. The offender’s vehicle continued and impacted with the rear trailer of the Western Star B Double. The force of the impact caused the kingpins to shear and the trailer to be forced into the back of the cabin of the prime mover.

57. The Western Star B Double was shunted forward into the rear of the Volkswagen Amarok, containing Chris Chown.

58. All vehicles involved in the impact were extensively damaged.

Emergency Response

59. Numerous calls were made to ‘000’

60. The police, fire, ambulance, VRA, SES, and Careflight attended the scene.

61. Civilians and RMS staff who were present at the scene rendered assistance as they could.

62. The Newell highway was closed in both directions between Dubbo and Gilgandra for over 12 hours as the collision was investigated by the Metropolitan Crash Investigation Unit, who flew out from Sydney.

Injuries

63. Several people were injured as a result of the offending. Injuries included:

1. Hannah Ferguson was killed (Count 1),

2. Reagan Skinner was killed (Count 2),

3. Connah Matthews was trapped underneath the offender’s prime mover for over 3 hours. He suffered deep dermal to full thickness burns to his back, left flank, left buttock, left thigh, right thigh, and left calf, totalling 13.5% of his total body surface area. These injuries required surgery to affix skin grafts to 12% of his back and left posterior lower limbs (Count 3),

4. Nicholas Rutley suffered bruising and grazing to his arms, legs, ribs, and hips (Count 4),

5. Julie Marshall suffered 4-part fracture and dislocation of left shoulder, and bruising, friction burns to left lower leg, and injury to left upper arm. These injuries required multiple surgeries to affix plate and screws to the left shoulder, as well as ongoing physiotherapy (Count 5),

6. Natalie Dunstan suffered laceration of her mouth, nose, and cheek, friction burns, bruising to her left hip, buttock, tailbone, knee, and stiffness in her neck (Count 6),

7. Carly Millgate suffered cervical spine fractures to C7 superior facet, C6 inferior facet, and C7 vertebral body, thoracic spine fractures to T4 and T5 end plates, right proximal humerus fracture, mandible fractures, and right lung contusion. These injuries required surgeries including: posterior C6/7 fusion, fixation of the mandibular fractures, and open reduction and internal fixation of right proximal humerus fracture (Count 7),

8. Allanah Millgate suffered laceration to her mouth and ear. These injuries required sutures and glue to repair right ear and upper lip lacerations (Count 8),

9. Jahmaine Reid suffered a deep laceration above right eyebrow and multiple lacerations to left wrist and upper arm. These injuries required suturing (Count 9),

10. JK (an infant) suffered bruising to both thighs (Count 10),

11. Kurt Meers suffered whiplash to neck and bruising to back, requiring physiotherapy (Count 11),

12. Christopher Chown suffered whiplash to his neck and bruising to his back and shoulder, requiring chiropractic treatment (Count 12).

The Offender

64. The offender was trapped in the cabin of his vehicle, although remained lucid and alert. The offender was eventually extracted by paramedics and flown to Liverpool Hospital where he underwent surgery for a broken leg.

65. The offender told a paramedic at the scene that his accelerator had stuck and that the brake would not work. This was ruled out by police and RMS mechanics who found nothing mechanical that could have contributed to the collision.

66. The offender told doctors, other witnesses, and then the police (during his ERISP, 2/2/2018) that he had suffered a coughing fit and ‘blacked out’ at the wheel.

67. Professor Naughton, Head of Respiratory Medicine at the Alfred Hospital, described this as ‘extremely unlikely.’

Jury’s verdict

68. The jury in returning a verdict of guilty to all counts must have rejected the accused’s version that he suffered a coughing fit which caused him to ‘blackout’ just before the collision.

69. It follows that the jury must have accepted beyond reasonable doubt that the collision and resultant injuries were occasioned as a result of the offender’s fatigue causing micro sleeps in the minutes leading up to the collision.

General Sentencing principles

70. S 3A of the Crimes (Sentencing Procedure) Act 1999 provides that the purposes for which a court may impose a sentence on an offender are as follows:

1. to ensure that the offender is adequately punished for the offence,

2. to prevent crime by deterring the offender and other persons from committing similar offences,

3. to protect the community from the offender,

4. to promote the rehabilitation of the offender,

5. to make the offender accountable for his or her actions,

6. to denounce the conduct of the offender,

7. to recognise the harm done to the victim of the crime and the community.”

71. Section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives and comes to the opinion that no other sentence is appropriate.

71. Given the maximum penalties, the nature of the offending, the deaths incurred, the injuries sustained and the need for general and specific deterrence clearly no other sentence than a sentence of imprisonment is appropriate.

Subjective features

73. The offender’s subjective features have been comprehensively detailed in:

1. A psychiatric report under the hand of Dr Olav Nielssen, dated 10 June 2020

2. A letter from the offender

3. Character references for the offender

4. A report by Dr Peter Johnstone, Orthopaedic Surgeon

5. A Sentencing Assessment Report

Psychiatric Report – Olav Nielssen

74. A psychiatric report was produced on 10 June 2020, under the hand of Dr Olav Nielssen.

History from Offender

75. The offender confirmed that he had been found guilty of dangerous driving occasioning death, dangerous driving occasioning GBH, and other driving offences, following a truck collision near Dubbo in January 2018.

76. The offender reported that he had been on remand for 7 months until being granted bail, allowing him to seek treatment for his injuries resulting from the offending.

77. The offender reported that his trial went for 3 weeks and was the last jury trial prior to the COVID-19 shutdown.

78. The offender stated that he did not give evidence on his own behalf, which he said in retrospect felt disappointing, as “the jury did not get to see the true me.” The offender stated that after the crash he was “torn apart by the media and by the police … they did not get to see the real me … a genuine dad who went to work and had a crash … I have worked all my life and most of my working life I have been on call 24/7 … my whole life I have been devoted to helping people.”

79. The offender reported being transferred from the crash site to Liverpool Hospital by helicopter and being treated in hospital for 2 weeks. The offender was interviewed by police after being transferred out of the hospital, and he was then charged and taken into custody. The offender told police during that interview what he could remember about the offending.

80. The offender said he was “confused” and that he “did not know what happened” but “presumed things happened because [he] could not work out what went wrong.” The offender reported feeling “groggy” immediately before being slammed into the back of the semi-trailer. The offender reported regaining consciousness while he was trapped in the truck, and feeling severe pain.

81. The offender recalled hearing another person screaming for help from underneath the truck.

82. The offender described his truck and his experience as a professional driver, and noted that he was driving a “wide load” at the time of the offending.

83. The offender described the night prior to the offending, being 15 January 2018, as “relaxing” and believed he fell asleep at approximately 12am. The offender referred to the dash cam footage of Mr Scott, who travelled in the heavy vehicle behind the offender, and noted that it showed the offender “keeping left of the road in order to keep the overhanging load away from the centre.”

84. The offender conceded that he had lost his licence twice for accumulated demerit points. The first time as a young man in his 20s, and the second time after he began driving professionally and “ran out of points.” The offender denied ever having been charged with driving under the influence of drugs or alcohol, nor using a mobile phone while driving.

85. The offender conceded previous negligent driving matters that he related to ‘the difficulties of being a truck driver.’ One such instance included when a car had run into the back of the offender’s vehicle, and falsely claimed (supported by witnesses) that the truck had backed up onto their vehicle.

86. Another incident occurred where a car cut in front of the offender’s truck and the offender was unable to stop in time to avoid collision.

87. The offender stated that “when you are a truck driver you don’t get any benefit of the doubt.”

88. The offender denied having any previous criminal charges or convictions.

89. The offender reported being very affected by the crash, including the fear for his own life, and the fear that the person he could hear calling for help had died.

90. The offender reported that when he was told that 2 people had been killed in the collision, he “sank to new lows … [he] could not believe this happened.”

91. The offender reported that he “still [has] flashbacks and nightmares” and “still think[s] about it over and over.” He stated, “those kids [who were killed] were similar in age to my kids … it’s really hard.”

Psychiatric History

92. The offender was not aware of any family history of major mental illness.

93. The offender did not report any contact with mental health services during his adult life prior to the offending.

94. The offender did not see any professionals during his first 7 months in prison. The offender then saw 3 separate psychiatrists at the request of WorkCover (his insurer) however “they could not help in any way.”

95. The offender stated “I was asking for help everywhere and everywhere I was going I was getting doors slammed in my face.”

96. The offender reported that recent symptoms have included:

1. Trouble falling and staying asleep;

2. Frequent ruminations about the offending event/s;

3. Anxiety when reminded of the offending event/s;

4. Anxiety when being driven.

97. The offender reported having lost approximately 15kg since being taken into custody following the trial. He reported experiencing strong anxiety whilst in custody, particularly after being caught up in a riot at Wellington Correctional Centre over the Easter weekend.

98. The offender denied suicidal thoughts, stating, “that does not take away the depression.”

History of Substance Abuse

99. The offender stated that he rarely drank alcohol, but reported a period of drinking as many as 10 spirits per day after he was released on bail. He stated that he was “trying to drown [his] feelings.” However, the offender reported he was able to get his drinking under control within a few months.

100. The offender denied use of any illicit drugs or abuse of medication.

101. The offender denied smoking cigarettes.

102. The offender has no history of gambling.

103. The offender stated that he drank caffeinated drinks while driving.

Other History

104. The offender described his work and relationship history.

105. The offender has 3 children resulting from his marriage, aged 20, 17, and 15. He and his ex-wife are amicable and cooperate regarding care of the children.

106. The offender is now in a relationship with a long-time friend, and acts as a father to her children.

107. He stated that he felt fortunate to have seen so much of Australia and to have made good friends through his occupation, however felt that a negative of his occupation was the time away from his children.

108. The offender stated that in the future he would “try to do something good for people to make up for this.” He stated, “there is no way I could go back to driving trucks.”

Information from Ms Donna Smith

109. The offender’s partner, Ms Donna Smith, spoke with the author of the psychiatric report and provided context regarding the offender.

110. Ms Smith described the offender as “a big softie … a good helpful person for as long as I have known him.”

111. Ms Smith stated that she had observed the offender having trouble sleeping, and believed this was because he was ‘going over things in his mind.’ Ms Smith stated that the offending and court process has “taken a lot out of him … he asks ‘why’ a lot.”

112. Ms Smith described the offender as being very distressed about the two deaths resulting from the offending, and stated “that gets to him a lot … he sometimes says he wished he had died instead … he is never going to get over it.”

113. Ms Smith attended the offender’s trial and stated that it was very long yet even still, not all the evidence was heard. Ms Smith said “obviously the man did not get up and go to work and decide to run over people.”

114. Ms Smith told the author that she has visited the site of the crash and laid flowers for those who were killed and injured. Ms Smith described being ‘puzzled’ as she noticed large paddocks on either side of the highway, and believed that the offender could and would have steered into such clearings had he been in control of his vehicle.

115. Ms Smith confirmed that she planned to remain in a relationship with the offender and that he would return to their home in Brisbane upon his release from custody.

Mental State Examination

116. The offender was visibly distressed when reflecting on the deaths of the young people involved in the collision.

117. The author assessed the offender’s mood as being proportional to his circumstances, but noted that the offender appeared ‘moderately depressed’

Psychiatric Diagnoses & Opinion

118. The author diagnosed the offender with Post-Traumatic Stress Disorder.

119. The author noted that this diagnoses was based on the history of intrusive anxiety provoking memories of the collision reported by the offender, including:

1. His own fear of bleeding to death and being trapped in a truck that caught fire;

2. His memories of the cries for help of another person who was trapped and;

3. His fantasies about the deaths of the two young people killed in the collision.

120. The offender reported anxiety symptoms when reminded of the events, e.g. media coverage of the collision and campaigns to discourage driving while fatigued.

121. The offender also reported avoidance behaviour in not wanting to drive or be driven.

122. The offender was obviously distressed when discussing the offending and his circumstances, and the author opined that the offender had features consistent with a depressive illness best described as a chronic form of adjustment disorder, or a clinically significant reaction to an adverse life event.

123. The author noted that typically the symptoms of an adjustment disorder resolve over time, sometimes assisted by supportive counselling however noted that if the offender continues to have disabling symptoms after sentencing that the offender may derive some benefit from more intensive treatment for depression.

124. The author assessed the offender as having a low probability of any further similar offences based on the traumatic effect of the offending and his account of being unable to return to the profession of truck driving.

Letter from Offender

125. The offender provided a letter to the Court at Sentencing.

126. The offender stated that the collision “changed my life and everyone involved forever” and wished for the court to hear from him.

127. The offender described his close relationships with his 3 sons and 2 step-sons, and his partner. He wrote about his involvement with children’s sports teams and school excursions.

128. The offender described his close relationships with his parents. The offender’s father passed away years ago when the offender’s children were young. The offender promised his father that he would take care of his mother, for whom he completed building house only weeks before the collision. That house has now been sold.

129. The offender detailed his working history, including 9 years spent as an NRMA patrolman, a period as a tow-truck driver for the NRMA, and 18 years running his own tow-truck business.

130. The offender stated that through this work, he had been present at many motor vehicle accident scenes, witnessing many fatalities. The offender noted that due to his professional history, he has an understanding of the impact of the collision on those involved.

131. The offender described the “enormous mental toll” the offending has taken on him as two young adults’ lives were taken and many others were injured. The offender described having heard a voice screaming for help immediately following the collision, and how his “heart sank to new lows.” The offender described how the voice stopped after a period of time, and that the offender feared that the person had died.

132. The offender noted that immediately following the collision, he believed the voice he heard was the only other person/vehicle involved. The offender was not made aware of the full extent of the collision until a few days later in hospital. The offender described sinking to the lowest he had ever felt. The offender noted that the ages of the two young adults killed were close to that of his oldest son, and he stated that he still struggled to understand why their lives were taken and his spared.

133. The offender stated, “I mentally struggle to cope with this every day.”

134. The offender described experiencing “nightmares and flashbacks” with which he struggles to deal with. The offender expressed sadness for the families of the deceased, noting that he “couldn’t imagine how this must feel” for them.

135. The offender stated that he believes he has many years left in his life to do good for people and the community. The offender wrote about a desire to work in disability support and age care, to bring some quality of life to others. The offender stated that his whole life has been devoted to helping others, and that he struggles now knowing how much pain and suffering has been caused as a result of the offending.

136. The offender believes that making a different to the community will help him deal with the offending.

137. The offender stated, “I never want to drive a heavy vehicle ever again.”

138. The offender described his experiences in custody, noting that he is surrounded by those who treat custody as a “revolving door” and seek to commit further crimes once released.

139. The offender described having been inadvertently caught up in the Wellington Corrections Centre Easter Riots in 2020.

140. The offender concluded by stating, “this is my life sentence that I will live with every day.”

Character References on behalf of Offender

141. A number of character references were provided to the court on behalf of the offender, namely:

1. Donna Smith – Partner of offender

2. Robyn Crockford – Mother of offender

3. Justin Crockford – Son of the offender

4. Kayleen Maguire – Friend of the offender

5. Ryan Crockford – Brother of the offender

142. I confirm that I have read them and take them into account in the sentencing exercise but I do not propose to provide a detailed summary of each of these references, however they referred to the offender as being:

1. A good father to 3 sons, partner, son, brother, and friend,

2. Highly involved in the community e.g. children’s swimming and soccer,

3. Remorseful,

4. Helpful,

5. Loving,

6. Thoughtful,

7. Hard-working,

8. A positive role model to others,

9. Altruistic,

10. Supportive, and

11. Respectful of the law.

Donna Smith – Partner of offender

143. Donna Smith is the partner of the offender and has known the offender for 15 years, 6 of which they have been in a relationship.

144. Ms Smith told the court that the offender has driven trucks for over 25 years and has helped many people as that is “who he is.”

145. Ms Smith described the offender as being a very good dad who was “very involved” in their sport. Ms Smith also told the court that the offender was a “wonderful step father” to her two sons, and was particularly close to Benjamin who had not known any other father.

146. Ms Smith stated that the family has struggled with the offender being in custody, particularly during the COVID-19 restrictions.

Robyn Crockford – Mother of offender

147. Ms Robyn Crockford is the mother of the offender and spoke of the offender’s time in hospital following the offending. She stated that the offender did not know that anybody has been injured and could not recall anything about the accident during this time.

148. Ms Crockford described her son as always being the first person to help others and referenced his time working for the NRMA.

149. Ms Crockford told the court the offender is loving and thoughtful, as well as a good role model for younger people. Ms Crockford told the court her son was selfless.

Justin Crockford – Son of the offender

150. Mr Justin Crockford is the son of the offender and told the court that he felt lost without his father’s guidance.

151. Mr J Crockford told the court that the offender has “always been there for us boys” and was supportive in their schooling and sporting activities.

152. Mr J Crockford described his relationship with his father, and stated that he could “talk to Dad about anything” and that he would always “support[ing] me with his guidance.”

153. Mr J Crockford told the court that the offending had changed the offender and that he was unsure whether his ‘old’ father would ever return. Nonetheless, Mr J Crockford told the court he was hopeful for his father’s return after his time in custody.

Kayleen Maguire – Friend of the offender

154. Ms Maguire is a long-time friend of the offender, having known him for approximately 33 years.

155. Ms Maguire told the court that she has known the offender to be respectful and caring toward others and would often go ‘above and beyond’ for his family, friends, and the community.

156. Ms Maguire stated that she had often witnessed the offender put hisown interests aside to assist others, and gave the example of the accused assisting with flood rescue.

157. Ms Maguire told the court that the offender has been heavily involved in community groups including sporting clubs.

158. Ms Maguire told the court that she has sat up on many nights with the offender when he was unable to sleep or had nightmares, after the offending.

Ryan Crockford – Brother of the offender

159. Mr Ryan Crockford is the brother of the offender. Mr Ryan Crockford told the court that he has discussed the offending at length with the offender and that he feels the offender is extremely remorseful.

160. Mr Ryan Crockford stated that the offender has always been a great role model.

161. Mr Ryan Crockford told the court that the offender had expressed to him his concern regarding the impact of this offending on his future and on the lives of his children.

162. Mr Ryan Crockford told the court of the offender’s involvement in his children’s lives and particularly their sporting activities.

163. Mr Ryan Crockford described his brother as having always displayed strong respect for the law, and as being embarrassed and ashamed by his offending conduct.

Report by Dr Johnstone, Orthopaedic Surgeon

164. A report by Dr Peter Johnstone, Consultant Orthopaedic Surgeon was produced on 18 May 2020 and tendered on sentence.

165. Dr Johnstone recounted the injuries of the offender resulting from the offending on 16 January 2018, including:

1. Soft tissue injury to the right and left shoulder girdles,

2. Soft tissue injury to the right upper limb and right hand,

3. Left proximal femoral fracture complicated by sciatic nerve paresis,

4. Lower limb weakness

166. Dr Johnstone noted that the offender was transferred from Liverpool Hospital to NSW Long Bay Correctional Facility a few days after surgery for his femoral fracture, and had limited access to analgesia and no significant physical therapy for his injuries.

167. Dr Johnstone first saw the offender on 5/10/2018; nine months after his injuries, and the offender remained in the care of Dr Johnstone until 3/2/20.

168. Dr Johnstone noted that as at 3/2/20, the offender still had reduced strength in his left lower leg, ongoing left sciatic nerve discomfort, and ongoing back discomfort, with the sciatic nerve injury showing evidence of partial paresis.

169. Dr Johnstone recounted the treatments the offender has received for these various injuries, and noted that he had expected to continue to see the offender for treatment throughout 2020 to see him through to a point where he had reached a stable and stationary position.

170. Dr Johnstone noted that the offender will “never return to truck driving.”

171. Dr Johnstone further noted that the offender’s recovery was impeded by his initial incarceration following the offending, and that he is concerned that an inability to continue with appropriate physical therapy will lead to the offender not gaining his best outcome and continuing to suffer a degree of increased impairment and disability.

Sentencing Assessment Report

172. A Sentencing Assessment Report was produced on the 30^th of April 2020 by Mr Bruce Pearce.

Family and Social Circumstances

173. The offender and his partner reside in Loganholme, QLD. The offender intends to return to this address once he is released from custody. The offender moved from NSW to QLD approximately 5 years ago, after the breakdown of his marriage.

174. The offender and his partner both describe their relationship as close and supportive.

175. The offender has three adult children from his marriage, who he maintains contact with.

176. The offender’s father is deceased; however he and his mother continue to share a close relationship.

177. The offender completed Year 10 and obtained his School Certificate. Upon leaving school, the offender completed his motor mechanic apprenticeship, and has maintained employment in this field since. The offender supplemented his income by working as a truck driver.

178. The offender was previously unknown to Community Corrections, and as such has not previously been subject to Community Corrections Supervision.

179. The offender acknowledged his involvement in the offending, stating “I acknowledge that I was driving the truck; I had a medical episode, and two children died as a result. I feel so terribly sorry for everyone involved,” however stopped short of accepting responsibility for the collision.

180. The offender made several statements of remorse. When asked about the impact of his offending, the offender became emotional and wept, stating “I am devastated by what happened. I find it difficult to cope with the grief that the families of the victims have had to endure as a result of what happened.”

181. The offender is willing to undertake any interventions that the Court deems necessary, including community service work. However, Community Corrections has determined the offender is unsuitable for community service work as he resides interstate.

182. The offender was assessed as being at a low risk of re-offending.

183. Given the offender’s intention to return to QLD following his release, NSW Community Corrections were unable to provide the Court with a Supervision Plan for post-release.

Crown Case

Report of Dr Jacques Ette – Justice Health and Forensic Mental Health Network

184. A brief report was provided by Dr Jacques Ette of the Justice Health and Forensic Mental Health Network (JHFMHN).

185. The report noted the current medical issues of the offender, namely:

1. Cough syncope

2. High Cholesterol

3. Hypertension

4. Sleep Apnoea

5. Previous fixation of comminuted fracture of proximal to mid shafts of the left femur with nails and screws

186. The report noted that Correctional Centres are serviced by Health Centres with nurses and medical officers who are able to treat the conditions suffered by the patient.

187. The report further noted that it is the position of the JHFMH Network that services available to those in custody are commensurate with those available in the community, and that all the resources of the State’s public health system are available for the use of the Network.

188. It was stated that all medications required by the offender are available to the Network and can be prescribed in custody, and further that the offender had previously used required medical machines whilst in custody.

CSNSW Response to COVID-19

189. The Crown tendered a Corrective Services New South Wales report regarding their response to COVID-19 as at 24 June 2020.

190. I do not propose to give a detailed summary of the report, however it was noted that as at 23 June 2020 there were no inmates who had been confirmed as COVID-19 positive.

191. Corrective Services New South Wales has developed and implemented comprehensive plans to manage and to prevent COVID-19 pandemic with respect to the custodial population.

192. I am familiar with a number of authorities that deal with COVID-19.

193. I acknowledge that COVID-19 will result in more onerous custodial conditions for the foreseeable future. I will discuss that further below.

Victim Impact Statements

194. On 25 June 2020 a number of Victim Impact Statements were tendered and read to the Court by their respective authors. Those authors included:

1. Chris Chown – victim

2. Natalie Dunstan – victim

3. Julie Marshall – victim

4. Connah Matthews – victim

5. Deanna Ferguson – mother of deceased victim, Hannah Ferguson

6. Kyle Wellsmore – brother of deceased victim, Reagan Skinner

7. Richard Wellsmore – uncle/guardian of deceased victim, Reagan Skinner

195. I do not propose to provide a detailed summary of each Victim Impact Statement, suffice to say that they were each very emotional for all persons present in court on 25 June.

Chris Chown

196. Mr Chown spoke of his experiences in the army reserve, rural fire service, and work on roadside sites. Mr Chown described the day of the offending as “one of the heaviest days” he has “gone through.”

197. Mr Chown continues to struggle to feel comfortable on roadside job sites since the day of the offending.

198. Mr Chown stated that he has replayed the “what ifs” in his mind since the incident, questioning how he could have been impacted had he left work 1 minute earlier or 1 minute later.

199. Mr Chown stated that the “reckless indifference on the road that day … changed so many lives.”

Natalie Dunstan

200. Ms Dunstan stated that she will, “never forget” the day of the offending, and that it has “impacted [her] life on so many levels … each and every day.” Ms Dunstan stated that her “life changed then and there.”

201. Ms Dunstan described the confusion and distress and “horror” that she felt immediately after the accident.

202. Ms Dunstan expressed being thankful that she was not seriously injured by the offending, but described that she has struggled with many questions regarding the events of that day, including:

1. The loss of life and why she was able to ‘walk away’ and be ‘ok’

2. How her family would have felt had she been killed

3. If she and her colleagues had done something differently that day, whether they would have been involved or more seriously hurt

203. Ms Dunstan described her experiences with anxiety, panic attacks, and coping mechanisms as a result of the offending.

Julie Marshall

204. Ms Marshall told the court of her confusion at the time of the offending. Ms Marshall described her initial injuries, being pain in her right foot and left leg and a swollen wrist. Ms Marshall recalled going in and out of consciousness due to the pain and recalled a police officer named Craig assisting her following the crash.

205. Ms Marshall described the events following the offending, and her experiences during the period between the collision and being admitted to Dubbo Base Hospital. Ms Marshall had negative experiences during her hospital stay/s.

206. Ms Marshall described the treatment of her injuries, which included numerous surgeries and complications.

207. Ms Marshall stated that the offending has had an “emotional, physical, and psychological impact” on her life.

208. Ms Marshall still does not have full range of motion in her injured arm, and this has impacted numerous facets of her life, including her marriage, daily activities, and hobbies.

209. Ms Marshall further discussed the impact of her injuries on her family, and particularly her children.

Connah Matthews

210. Mr Matthews described the injuries he suffered as a result of the offending, namely:

1. Deep dermal to full thickness burns to back, left side of chest, left thigh, right thigh, and left calf, to a total of 13.5% of his body

211. Mr Matthews also spoke of the impact that the offending has had on his life, including compromising his ability to carry out physical tasks e.g. lifting and carrying items.

212. Mr Matthews described having suffered depression and anxiety, particularly in traffic situations, which has occasionally led to strong physical symptoms of distress.

Deanna Ferguson – Mother of Hannah Ferguson

213. Ms Ferguson stated that on 16 January 2018, her “life as [she] knew it changed forever” as she was given a “life sentence [she] neither asked for, nor deserved.”

214. Ms Ferguson described her daughter the victim Hannah Ferguson and the blissful life they had shared together prior to the offending.

215. Ms Ferguson spoke of the overwhelming grief she has experienced since the offending. Ms Ferguson stated that the months after Hannah’s death were a “blur” and that she felt “alone” despite the support she received from friends and family. Ms Ferguson told the Court that she finds it “too painful” to go out, and does not believe she could return to work after the passing of her daughter.

216. Ms Ferguson described her struggles with faith and the psychological support she now requires – including sessions with psychiatrists and psychologists, as well as medication. She described having experienced depression, suicidal ideation and PTSD.

217. Ms Ferguson spoke about the lost future of her daughter, including birthdays, weddings, and children, that she will now never experience.

218. Ms Ferguson said that she has struggled to accept that her life no longer includes Hannah and said that the whole family has been affected by this loss. Ms Ferguson struggles to deal with the loss her children have faced in losing their sister.

219. Ms Ferguson stated that she had been “saved” by the support of her husband and children, and that she endeavours to remind herself that she is lucky to have them in her life.

220. Ms Ferguson told the court that she “holds no animosity towards the truck driver” and believed that he had no intentions of causing the harm that he did.

Kyle Wellsmore – Brother of Reagan Skinner

221. Mr Wellsmore described the effect of losing his brother Reagan as “immense and almost impossible to quantify”. He described their difficult childhood together, which had bonded them closely.

222. The boys were raised largely by their uncle and his wife.

223. Mr Wellsmore described Reagan as compassionate, respectful, caring, and loving.

224. Mr Wellsmore described conversations he had with his brother in the days preceding the offending, with respect to his upcoming graduation. Mr Wellsmore was concerned that their mother would be unable to attend. Reagan reassured him and stated that he would be there irrespective.

225. This was the last conversation that Mr Wellsmore had with his brother before his death. He described the loss of Reagan as a loss of both his brother and his best friend.

226. Mr Wellsmore described his personality before and after the loss of his brother, and noted that those closest to him have also noticed marked differences. Mr Wellsmore now suffers from depression and anxiety, and attends regular sessions with a psychologist.

227. Mr Wellsmore told the court that shortly after the death of his brother, he completed his degree and attended his graduation without his brother.

228. Mr Wellsmore believes this loss has impacted his capacity to work and his driving. He described experiencing panic attacks while waiting at road works, and also experiencing panic attacks at other times when triggered by memories of his brother.

229. Ms Wellsmore told the court that he counts the minutes each day until he can go to sleep.

230. Mr Wellsmore stated that “losing Reagan has caused a monumental shift in my core” stating that he “will never be the same.” The offending has caused “irrevocable harm to [him] mentally and emotionally.”

Richard Wellsmore – Uncle/Guardian of Reagan Skinner

231. Mr Richard Wellsmore described the way in which it was conveyed to him that his nephew/son has been killed, being through his other nephew/son, the brother of Reagan, Kyle Wellsmore. Mr Wellsmore told the court in great detail how the family members became aware of the accident and noted that the police attended the door of Mr Kyle Wellsmore, the brother of the deceased.

232. Mr Wellsmore described the panic and confusion surrounding the news and his dilemma as to how to travel to Armidale to be with Kyle, being unsure whether he could stay awake long enough to drive the required 6 hours. He also described the conversation with his wife, who was effectively a mother to both boys.

233. Mr Wellsmore spoke about his realisation that he would like to contact the parents of Reagan’s girlfriend, Hannah Ferguson, who had also been killed. Mr Wellsmore described the difficulty he had in ascertaining contact details for the Ferguson family, which included obtaining a home address for Hannah’s family through a friend of Reagan’s.

234. Mr Wellsmore described the two weeks following the offending as “a funeral march.” His family travelled together by car through various points of NSW, including a stop on the road upon which Reagan and Hannah had sadly been killed. Mr Wellsmore told the court that he had witnessed the road and the conditions of the area in which the offending occurred. Mr Wellsmore struggled to understand how the offending could have occurred.

235. Mr Wellsmore told the court of his struggle to understand the actions of the offender throughout the court process. Mr Wellsmore also told the court that he felt that this incident had been a “perfect opportunity for a very clear message to both go out and be received positively by all drivers … [and] change[d] driving attitudes.” Mr Wellsmore felt this opportunity was lost.

236. Mr Wellsmore described how he had come to be a guardian and father-figure for Reagan, and stated that they “truly connected.” He described their yearly snow trips, their deep conversations, and their shared passion for craft beer.

237. Mr Wellsmore concluded that “many things now have more than one perspective to me and will so for the rest of my life.”

Submissions by Counsel

Crown Written Submissions

238. The Crown submitted that the offender’s behaviour constituted a gross abandonment of responsibility, with a very high level of moral culpability.

239. It was submitted that the present offending is worse than the ‘ordinary case’ contemplated by the guideline judgment, and as such should incur a ‘severe’ custodial sentence well in excess of the guideline.

240. It was submitted that such a sentence is warranted by a number of factors, namely:

1. Dishonesty of the offender,

2. Failure of the offender to take responsibility for his actions,

3. The offender’s repeated disregard for the traffic laws.

The Law on Driving Offences Generally

241. The Crown submitted that the legislature has long placed emphasis on the importance of human life, and that in the present offending, the substance of the offending is the damage to human lives that was caused. It was submitted that conduct which causes death or GBH is regarded as serious, irrespective of intention (R v Whyte [2002] NSWCCA 343 at [205]).

242. It was submitted that the courts must be careful in showing leniency for good character in such cases, and that persuasive subjective circumstances must not lead to inadequate weight being given to the seriousness of the offending (R v Paul Musumeci (Court of Criminal Appeal (NSW), 30 October 1997, unrep).

243. In addition, the Crown submitted that in this case, the offender is not of ‘good character’ due to his previous traffic record and that his subjective case is not able to be characterised as ‘persuasive.’

244. The Crown referred the court to the cases of R v Jurisic (1998) 45 NSWLR 209 and R v Whyte (2002) 55 NSWLR 252, and noted that the community expects motor vehicles to be controlled responsibly, given the implicit dangerousness of their usage.

245. Further reference was made to the need for deterrence with respect to professional drivers of heavy vehicles due to the danger of heavy vehicles, long hours spent on the roads, potential for disastrous consequences for other road users should a collision occur; and the necessity for such drivers not to drive when they are tired (R v Besant [2003] NSWCCA 388).

246. It was submitted that general and specific deterrence are important in the present case and that it ordinarily outweighs the remorse or rehabilitation of an offender (Musumeci).

Moral Culpability and Guidelines

247. The Crown referred the court to the cases of Jurisic and Whyte, as above, noting that the guideline provides only a lower limit for the ‘typical’ case rather than prescribing an upper limit for sentencing such matters.

248. The Crown made submissions on each factor of the ‘typical case’ as described in Whyte, namely:

1. Young Offender – it was submitted that the offender was 50 years old at the time of offending and an experienced professional driver who knew the disastrous impact of driving whilst tired,

2. Of good character with no or limited prior convictions – it was submitted that the offender’s traffic history is not limited, however it was conceded that he has had no criminal convictions,

3. Death or permanent injury to a single person – it was submitted that the impact of the offending was significantly higher than the typical case, with 2 killed, permanent injury to 3, and bodily injury to 7,

4. The victim is a stranger – the Crown submitted that this factor was consistent with the typical case,

5. No or limited injury to the driver – it was submitted that the offender only suffered a broken leg, likely due to his not wearing a seatbelt at the time of impact,

6. Genuine remorse – the Crown submitted that the offender does not have any remorse,

7. Plea of guilty of limited utilitarian value – it was submitted that this was not applicable as the offender was found guilty by a jury after a strong crown case was presented.

249. It was ultimately submitted that the present offending was more serious than the ‘typical case.’

250. The Crown made submissions on each ‘aggravating factor’ contemplated in Whyte, which, it was submitted, individually and in combination indicate that the moral culpability of the offender is high in the present case.

1. Extent and nature of injuries – it was submitted that the nature of the harm caused was significant, including:

1. 2 deaths,

2. 1 person who suffered serious burns,

3. 1 person who suffered serious spinal, jaw, arm, and thoracic injuries,

4. 1 person who suffered serious shoulder injuries,

5. 7 people will various less serious injuries,

2. Number of people put at risk – it was submitted that the offender put every road user between Gurley and Dubbo at risk,

3. Degree of speed – it was submitted that the speed of the offender’s vehicle was excessive in the circumstances, and particularly so as he passed various new lower speed limit zones. The offender’s vehicle impacted the stationary cars at 86 km/hr, shortly before the 40 km/hr zone began. It was submitted that this was well above a safe speed in the conditions.

4. …

5. Erratic or aggressive driving – it was submitted that the offender’s vehicle was seen swerving in and out of the appropriate lane, particularly in the 3 minutes prior to impact

6. …

7. Length of journey during which others exposed to risk – it was submitted that the distance between Gurley (commencement point for the day) and point of collision is a distance of 325km, and the proposed journey from Gurley to Canberra is approximately 700km. The crown submitted the court should take into account both the actual and proposed distances travelled (R v Takai (2004) 149 A Crim R 593 at [39]), and as such, the danger posed was significant.

8. Ignoring of warnings – it was submitted that the offender ignored 10 warning signs and a set of ‘rumble strips’ over a distance of 1.8km, as well as a line of stationary cars ahead.

9. …

10. Degree of sleep deprivation – it was submitted that the offender was significantly sleep deprived on the day of the collision, and that he had not ensured adequate sleep time over the two nights preceding the collision. It was submitted that the offender made a series of choices that disturbed his sleep and ability to safely perform his duties, and that it was “irresponsible in the extreme.” It was further submitted that the offender “completely abrogated his responsibility” and had noticed his daytime somnolence in the days prior but failed to remedy this. The crown submitted that this particular factor was significantly aggravating in this case,

487. Were it not for this collision I have no doubt that the offender had he continued to drive in his state of fatigue would have posed a threat to many more users of the road, particularly if he were to arrive in Dubbo at about 1:00pm on a summer day of the school holidays and drive through the built up areas which are extremely busy thus posing an extreme risk of danger to the community.

488. That however did not happen and I put that speculative part of my judgment aside.

Erratic or aggressive driving

490. I could find no evidence of aggressive driving.

491. I confirm that I have watched the dash cam video footage again very closely yesterday evening and made a number of observations which are relevant to my ultimate finding of fact with respect to the cause of the collision.

492. Whilst the offender may have been tired at this initial point, that fatigue was not a real risk until the onset of the first micro sleep. I took the opportunity to go through watching the dash cam video footage again. I am of the view that that is the best evidence and is probative and highly powerful evidence in the course of the sentencing procedures.

493. I made a log of the times at which particular actions of the vehicle were noted. I hasten to add that the times that I refer to are one hour behind summertime which would have been the appropriate time here, in Dubbo in New South Wales. The reason there is the time difference of one hour is because the time stamp comes from Mr Scott’s motor vehicle which was registered in Queensland and was set to Eastern Standard Time. It is important to bear that in mind.

494. I observed the offender’s vehicle react appropriately on many occasions on the drive from Gilgandra to the point of impact. These include but are not limited to the following:

• 10.57am appropriately he left the breakfast stop at Gilgandra,

• 10:59 slowed appropriately for road works. He maintained the speed limit at 110 kilometres after leaving the road works,

• Next I saw him move appropriately to the left for an oncoming semi-trailer to pass,

• At 11:02 I saw his vehicle move appropriately to the left for an oncoming car to pass,

• At 11:04 I saw his vehicle move appropriately to the left for an oncoming car to pass,

• At 11:06 I saw his vehicle move appropriately to the left for an oncoming truck to pass,

• I saw at 11:07:59 I saw the vehicle move appropriately to the left for an oncoming car and truck to pass,

• At 11:09 I saw his vehicle move appropriately to a new left carriageway which emerged on the roadway when an overtaking lane became apparently closest to the centre line,

• At 11:10 I saw his vehicle merge back appropriately,

• At 11:13 I saw his vehicle move appropriately to the left for an oncoming truck,

• I saw him move appropriately to the left for an oncoming vehicle at 11:14:20,

• I saw him move appropriately to the left for an oncoming vehicle at 11:15:15,

• I saw him move appropriately to the left for oncoming cars at 11:18:37,

• I saw him move appropriately to the left for an oncoming vehicle at 11:19:55,

• I saw his vehicle merge right appropriately at 11:20:40,

• At 11:21 a sedan overtook Mr Scott and was positioned behind the offender’s vehicle. He moved appropriately to the left for an oncoming truck at 11:22:12,

• He moved appropriately to the left for an oncoming line of traffic at 11:26,

• He ignored a number of warning signs starting at about 11:28 and continued to ignore those warning signs until the collision,

• He took no evasive action at 11:29:49, which I find was the point of time when the impact occurred.

495. I also observed the offender’s vehicle move to the left for no apparent reason on a number of times. These include at the following approximate times:

• 11:13:51;

• 11:14 :17;

• 11:17:33 for about 6 seconds;

• 11:17:54;

• 11:28:15.

496. There may be others, but it was difficult to get every movement to the left and to note the time at the same time. I am of the view that these are some of the times when the offender was having a micro sleep on the journey from Gilgandra to Dubbo.

497. I am of the view that given the weight of the offender’s vehicle, the speed it was travelling and it being a wide load that the veering to the left was an example of erratic driving. I hasten to add that this was not the most serious example of erratic driving but given the associated circumstances of the nature of the vehicle being driven I do find that from 11:13 the vehicle had moments when it was driven erratically which coincided with the micro sleeps.

498. This is consistent with my finding that the offender was fatigued. I am fortified in this finding by Professor Naughton’s evidence who after having read and seen the material in this case, was of the view that the causes of the ‘crash’ were fatigue, sleepiness, micro-sleeps, or inattention.

499. Professor Naughton gave evidence at trial that the ‘veering’ evident in the dash-cam footage of Mr Scott’s vehicle, was typical of a drowsy driver;

500. I find that the causes of the collision were fatigue which brought about micro sleeps and inattention.

501. I also find that given the number nature and length of the micro sleeps and the fact that offender knew he had experienced some sleepiness in the preceding days that he had ample warning of his state of fatigue. He must have been on notice of his state of fatigue yet he made a conscious decision to ignore them.

502. These were warnings which the offender ignored which lead to mayhem and carnage on the Newell Highway that fateful day in January 2018.

503. I do not find as the Crown submitted that this was a case of abandonment of moral responsibility. Whilst the facts show a number of aggravating factors some of those factors are closely entwined.

504. There is no evidence of aggressive or competitive driving.

505. The offender had not been driving for hours without a break or driving to an impossible deadline.

506. Whilst I have speed to be a contributing factor it was not at the extreme levels of speed which could form as more serious factual matrix.

507. There is no suggestion that the offender was affected by drugs or alcohol.

508. For all the above reasons I find that the counts of dangerous driving causing death were at the upper end of the mid-range of objective seriousness.

509. For the above reasons I find that the counts of causing grievous bodily harm sit at the mid-range given particularly the array of injuries that were caused to the victims of those counts.

510. With respect to the wanton driving charges I note that for all of the above reasons the objective seriousness of those matters sits at the mid-range.

Sentencing

511. I am mindful that whilst there are multiple counts on the indictment these counts all arise out of a single course of conduct.

512. I must be mindful however that there are discrete victims and the sentencing exercise must take that into account.

513. I have noted above and I confirm that general deterrence in this matter looms large. Drivers of heavy vehicles must be warned that driving whilst fatigued kills and the community must be protected.

514. I must be mindful of the need for totality recognising appropriately the need for accumulation and concurrency but without imposing a crushing sentence.

515. I have taken into account the Victim Impact Statements in the way as permitted by the legislation.

516. I have applied the modest discount of 5%.

517. I confirm that I have found special circumstances and adjusted the statutory ratio accordingly favourably to the offender.

Order

518. I have decided to impose an aggregate sentence of imprisonment pursuant to s53 Crimes Sentencing Procedure Act.

519. The aggregate sentence I impose consists of a non-parole period of 5 years 4 months commencing from 2/9/2019 and a head sentence of 9 years 6 months. I confirm that I have found special circumstances and adjusted the statutory ratio of the non-parole period accordingly and favourably to the offender.

520. The offender will become eligible to be released on parole on 1/1/2025.

521. The sentences that would have been imposed for each offence if separate sentences had been imposed instead of an aggregate sentence are as follows:

522. For the offence of Charge 1, dangerous driving causing the death of Hannah Ferguson a sentence of 4 years. This term has been reduced by a discount of 5 per cent for assistance to authorities. 2.

523. For the offence of Charge 2, dangerous driving causing the death of Reagan Skinner a sentence of 4 years. This term has been reduced by a discount of 5 per cent for assistance to authorities.

524. For the offence of Charge 3, dangerous driving causing grievous bodily harm to Connah Mathews a sentence of 2 years 10 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

525. For the offence of Charge 4 a charge of whilst in charge of a vehicle did wantonly drive causing bodily harm to Nicholas Rutley, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

526. For the offence of Charge 5, dangerous driving causing grievous bodily harm to Julie Marshall a sentence of 2 years 10 months a sentence of 2 years 10 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

527. For the offence of Charge 6, whilst in charge of a vehicle did wantonly drive causing bodily harm to Natalie Dunstan, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

528. For the offence of Charge 7, driving causing grievous bodily harm to Carly Millgate a sentence of 2 years 10 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

529. For the offence of Charge 8, whilst in charge of a vehicle did wantonly drive causing bodily harm to Allanah Millgate, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

530. For the offence of Charge 9, whilst in charge of a vehicle did wantonly drive causing bodily harm to Jahmaine Reid, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

531. For the offence of Charge 10, whilst in charge of a vehicle did wantonly drive causing bodily harm to JK, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

532. For the offence of Charge 11, whilst in charge of a vehicle did wantonly drive causing bodily harm to Kurt Meers, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

533. For the offence of Charge 12, whilst in charge of a vehicle did wantonly drive causing bodily harm to Christopher Chown, a sentence of 1 year 2 months. This term has been reduced by a discount of 5 per cent for assistance to authorities.

Period of Disqualification

534. One of the purposes of a period of disqualification is to inform the offender of the seriousness of the offences he has been convicted of and the necessity of complying with road rules.

535. I have no doubt that those purposes have been brought home to the offender by his conviction and his imprisonment.

536. I see no other relevant purpose in this case to warrant the applicant not being permitted to drive in a timely manner after his release from prison.

537. In the circumstances I would impose a period of disqualification of 12 months from 1 January 2025.

S 166 Matters

538. Sequences 15, 16, and 18 have been taken into account within the aggregate sentence above. I impose indicate indicative sentences for each of the 166 matters of two months.

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Decision last updated: 23 October 2020