R v Egan

[2021] NSWDC 270

District Court

New South Wales

Medium Neutral Citation:

R v Egan [2021] NSWDC 270

Hearing dates:

7 May 2021

Date of orders:

7 May 2021

Decision date:

07 May 2021

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

See sentence at paragraph [40].

Catchwords:

Criminal law- sentence - drive vehicle under the influence of methylamphetamine – heavy vehicle collision – death – Form 1

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Drug Misuse and Trafficking Act 1985

Cases Cited:

Attorney General's Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518

Moodie v R [2020] NSWCCA 160

R v Whyte (2002) 55 NSWLR 252

R v Craig Besant [2003] NSWCCA 388

R v Gardner [2004] NSWCCA 365

R v Khatter [2000] NSWCCA 32

Category:

Sentence

Parties:

Regina (Crown)
Jamie Egan (Offender)

Representation:

Counsel:
Ms Mendes (Offender)

Solicitors:
Ms Hanshaw (DPP)

File Number(s):

2019/00222386

Publication restriction:

Nil

EX TEMPORE Judgment

1. HIS HONOUR: Jamie William Egan appears for sentence having pleaded guilty to drive a vehicle under the influence of methylamphetamine, contrary to s 52A(1)(a) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment. There is no standard non-parole period. The maximum penalty is an important guidepost in the assessment of sentence.

FORM 1

2. The offender also asks that I take into account on sentence, pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, one offence listed in a Form 1, namely possess a prohibited drug methamphetamine 1.36 grams contrary to s 10 of the Drug Misuse and Trafficking Act 1985, with a maximum penalty of two years imprisonment.

3. I note that having availed himself of this arrangement the offender has the benefit of not facing separate punishment for the additional offence. I have reviewed the principles enunciated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, (No 1) 2002 [2002] NSWCCA 518. The court is to impose a sentence for the totality of the criminality before it, reflected in both the offence for which the offender is to be sentenced and the offence taken into account. This may mean that the sentence passed is greater than that which would have been appropriate for the principal offence standing alone.

4. The fact that matters are on a Form 1 are to be taken into account means that greater weight should be given to personal deterrence and retribution. As part of the instinctive synthesis approach to sentencing the court takes the Form 1 matters into account as required by the statute in determining the appropriate penalty for the offence for which the offender is convicted.

5. I accept Ms Mendes’ submissions that the Form 1 matter will not result in any further punishment needing to be inflicted on Mr Egan.

DISCOUNT FOR PLEA

6. The offender pleaded guilty at the earliest opportunity and was committed for sentence on 12 October 2020. He is entitled to a 25% discount upon his sentence.

FACTS

7. Contained in exhibit 1 is a 20-paragraph statement of agreed facts. I summarise those facts and hope that I do justice to them in the summary: On 28 March 2019 Jamie Egan was employed as a heavy vehicle driver. At approximately 8.20pm on that day the deceased Rex Martin was driving a Mazda dual cab utility in a northerly direction on the Hume Highway. He was in the left hand lane of the two lane highway and was towing a dual axle car trailer. The trailer was loaded with a Morris Minor van. The accused was driving a Kenworth K200 prime mover in the left hand lane and was towing two trailers in a B-double configuration.

8. As a result of the difference in each vehicle’s speed the accused’s vehicle gained on the deceased’s vehicle over time, with the gap between the two vehicles decreasing. As the two vehicles approached Sweetwater Creek Bridge at Mullengandra, about 45 kilometres north-west of Albury, the accused’s vehicle was directly behind the deceased’s vehicle and the distance between the two vehicles continued to decrease. Both vehicles were still travelling in the left-hand lane as the distance between the vehicles continued to close to the point where a collision was imminent. The accused pulled his vehicle sharply towards the right.

9. The front near side of the prime mover impacted with the rear offside of the trailer attached to the deceased’s vehicle. The impact forced the deceased’s Mazda utility to veer sharply to the right causing it to roll in front of the accused’s vehicle while the trailer was dragging along the nearside of the accused’s vehicle by its coupling and safety chains. This impact caused damage to the cabin of the Kenworth so that it tilted forward. The Mazda utility and its trailer slid further up the road, coming to a rest about 25 metres north of the bridge. The trailer remained upright through the collision but the utility came to rest on its roof and caught alight. Drivers travelling southbound stopped to render first aid; they were unable to reach the deceased due to his vehicle being engulfed in flames. As a result the deceased sustained fatal injuries. The body of the deceased was significantly burned and was later identified through fingerprints.

10. The accused sustained head and back injuries and was airlifted from the scene to the Canberra Hospital for medical treatment and mandatory blood testing. Police also located a sunglass case, belonging to the accused,containing two small plastic resealable bags containing a crystal substance. The substance was revealed to be approximately 1 gram of methylamphetamine (possess prohibited drug Form 1 offence).

11. The accused was arrested on 17 July 2019 and participated in a record of interview. It contains the following:

1. In response to a question to the effect of what happened the accused admitted being the driver of the prime mover when “out of nowhere” he saw the deceased’s vehicle. He said that the vehicle had no lights but then he saw the brake lights “and that was it”. The accused was unable to remember what happened after that point onwards.

2. An admission by the accused to prior use of illicit drugs but no admission to having used illicit drugs or alcohol in 24 hours prior to the collision.

3. A statement by the accused that prior to the collision he was not distracted, his health was good and he was not feeling tired.

4. A statement by the accused that he did not work in the 24 hours prior to commencing work at 3.30pm on 28 March 2019 at Werribee, Victoria.

5. A blood sample was taken and tested and there was the presence of methylamphetamine;

Amphetamine 0.04 milligrams per litre

Methylamphetamine 0.51 milligrams per litre

Morphine (Free) 0.02 milligrams per litre

12. An expert report was obtained from forensic pharmacologist
    Dr Judith Perl. Dr Perl opined,

“The significant amphetamine concentration in Jamie Egan does suggest he most likely used methamphetamine frequently. The very high methamphetamine concentration indicates he used significantly more than “1 point” (0.1 grams or 100 milligrams) of methamphetamine, and it does suggest a very recent use (most likely within about four to six hours of the collision). Therefore, given the footage of circumstances of the collision and his very high methamphetamine, I am of the opinion Jamie Egan was under the influence of methamphetamine to the extent there would have been significant impairment of his driving ability”.

13. The offender sustained multiple soft injuries and L1 and L2 lumbar superior endplate fractures.

14. On 31 March 2019 during interview with the drug and alcohol service the offender disclosed that he last used ice on 28 March 2019, being the day of the collision. He also admitted having used ice in the past, when he drove the truck, to keep himself awake.

15. On April 1 2020 the accused was spoken to by a social worker. He reported a previous diagnosis of depression. He appeared very emotional and remorseful when discussing the collision.

OBJECTIVE SERIOUSNESS

16. In the guideline judgment of R v Whyte (2002) 55 NSWLR 252, the court emphasised that the guideline is a reference point. The court identified a number of characteristics common to offences of driving in a dangerous manner at [204], they being:

1. Young offender,

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

3. convictions,

4. The death or permanent injury to a single person,

5. The victim is a stranger,

6. No or limited injury to the driver or the driver’s intimates

7. Genuine remorse,

8. A plea of guilty of limited utilitarian value.

17. The offender is not a young man, he is not an inexperienced naïve driver. To the contrary; Mr Egan was a highly experienced driver who was familiar with the roadway in question and the management of his vehicle. As a result of his injuries he suffers ongoing pain to his back.

18. The plea attracts a 25% discount, not the 10% contemplated by the court in the guideline judgment. The offender is not a person of prior good character but he is someone with a limited criminal history, otherwise the offender falls into the frequently recurring case.

19. At [216] - [217] the court set out a list of aggravating factors; namely,

1. Extent and nature of the injuries inflicted,

2. The number of people put at risk,

3. Degree of speed,

4. Degree of intoxication or of substance abuse,

5. Erratic or aggressive driving,

6. Competitive driving or showing off,

7. Length of the journey during which others were exposed to risk,

8. (viii)   Ignoring of warnings,

9. Escaping police pursuit,

10. Degree of sleep deprivation,

11. Failing to stop.

20. Items (iii) to (xii) relate to the moral culpability of an offender. Spigelman CJ at [229] said,

“Where the offender’s moral culpability is high a fulltime custodial head sentence of less than three years (in the case of death) and two years (in the case of grievous bodily harm) would not generally be appropriate”.

21. Ms Mendes submits that the offender was significantly impaired as a result of being under the influence of methylamphetamine. The journey was a lengthy one, it is likely that other road users were exposed to the risk posed by the offender.

22. The offender was a professional truck driver. There is a need for general deterrence in this case, particularly in relation to the use of illicit substances by long distance truck drivers who seek to cheat tiredness and mental fatigue: Moodie v R [2020] NSWCCA 160 at [140].

23. In R v Gardner [2004] NSWCCA 365 the offender unsuccessfully appealed a sentence of four years with a non-parole period of two years and six months. The court observed in that case that it stood as a solemn warning to any driver of heavy vehicles not to take drugs which have not been prescribed by a medical practitioner at [48]. He had a heavy onus as a professional truck driver to properly manage his vehicle at all times.

24. Simpson J in R v Khatter [2000] NSWCCA 32 noted at [31]:

“Offences under s 52A are not divided into those of momentary inattention and those of abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different incidences of the offence and it is proper for the court to recognise a continuum rather than a dichotomy when assessing moral culpability”.

25. The collision was caused by a combination of inattentiveness and distraction, coupled with his significant impaired driving ability due to the ingestion of drugs. It was he who intentionally chose to take illicit substances for the purpose of getting behind the wheel of a heavy vehicle to drive for lengthy periods. As a 48-year-old professional truck driver he would have been aware of the risk he was taking, not only for his own safety but to the safety of other road users. General deterrence is a major sentencing consideration.

26. Ms Mendes, who appears on behalf of the offender, says that the offender’s moral culpability is high in the sense described in the guideline of judgment of Whyte; it is a sensible submission. The Crown submits that the facts of this matter are such that the offence falls within the midrange of objective seriousness for the following reasons:

1. the fact the offence involved a heavy vehicle driven by the accused,

2. the length of journey during which others were exposed to risks was significant, and

3. the degree of substance abuse resulting in a “significant impairment of his driving ability”.

27. The Crown further submits that this case is more serious than one of momentary inattentiveness but falling somewhat short of characterisation of a complete abandonment of responsibility on the other extreme. The Crown concedes this matter does not concern excessive speed, erratic or competitive driving, escaping police pursuit or failing to stop.

28. Ms Mendes submits that the court should find that the objective seriousness of the offence falls within the middle of the range. I find that the objective seriousness is midrange.

SUBJECTIVE FEATURES

29. There is a Sentence Assessment Report dated 25 November 2020 which informs me of the following:

“Mr Egan advised he would like to return to Victoria on his release as he has no accommodation or supports in New South Wales. His sister, who resides in Victoria, has advised her ongoing support of her brother. He’s worked in the transport industry for approximately 25 years. His previous employer provided positive feedback about his work performance and has advised a position will be available for Mr Egan upon his release.

Mr Egan has engaged in employment in custody when work has been available for him. CSNSW records show Mr Egan has recently earned a promotion in inmate industries due to his work performance.

He has a criminal record in New South Wales and Victoria. His criminal history contains varying offences, however predominantly possession of illicit substances.

Mr Egan advised he commenced using amphetamines over ten years ago, claiming that the medications he was prescribed for depression did not work. He disclosed daily use of amphetamines and acknowledged he was affected by drugs at the time of the offences.

Justice Health has confirmed Mr Egan is being treated for depression whilst in custody. Mr Egan has acknowledged his responsibility for his offending behaviour and has verbalised empathy for the victim’s family. He identified both the people who attended the crash site, and his family were also impacted as a result of his actions.

He has been assessed as a medium-low risk of reoffending”.

30. Exhibit A is the report of Dr Alexey Sidorov, dated 21 April 2021. It informs me that Mr Egan is a 48 year old man who is currently single. He has three children aged four, 14 and 17 from different partners. After the incident he did not continue working mainly due to his injuries. Psychologically he was “shattered”. He described the guilt and remorse he carried for having taken someone’s life. Mr Egan described that he was previously charged for driving under the influence of illicit drugs as well as the possession of drugs. He also described that he had a previous burglary charge. He denied any previous incarcerations.

31. He started truck driving at the age of 21 or 22. He started on smaller trucks and gradually worked his way up to bigger trucks. He worked almost continuously but with different employers. He enjoyed his work. Until 2019 he worked as a truck driver.

32. It is the opinion of Dr Sidorov that Mr Egan suffers from a major depressive disorder, currently in partial remission, post-traumatic distress disorder, in partial remission, which relates to the serious motor vehicle accident in 2019, and stimulant use disorder, currently in remission, in controlled environment.

33. Exhibit B is a letter from the offender. He says,

“I take full responsibility for the hurt and suffering I have caused so many people. To the Martin family I send you my deepest condolences and my most sincere apology. I hope that one day you may be able to forgive me for the grief that I have caused you...as Christmas Day 2019 approached I thought a lot about the empty seat at the Martin family dinner table. I was wracked with guilt. I decided that at my next court appearance, 21 January 2020, I would ask that my bail be revoked. I thought that if the Martin family had to live without their partner, father, son, friend then so should I miss out on my family...I have had a lot of time to think and reflect and plan for my future. I want to become a better person. I would like to help to better understand where I went wrong to make sure that the rest of my life is clean of bad habits. I promise that I will never use drugs again...I will carry the regret that I feel today and have felt since the day to my grave”.

PRIOR OFFENDING

34. The offender does not have a lengthy record, however of note is the fact that he has a number of prior entries for possession of methylamphetamine in New South Wales and Victoria. He was convicted, with no further penalty, at the Albury Local Court on 20 January 2021 for a number of log book offences and offences relating to heavy vehicle drivers not taking requisite rest periods. The date range for those summary offences was between 12 and 28 March 2019, approximate in time to the offence currently for sentence. None of the offences relating to failing to take appropriate rest periods related to the date of the fatal collision.

CONTRITION/REMORSE

35. I am satisfied on the materials before me that Mr Egan has expressed genuine contrition and remorse for his conduct.

PROSPECTS OF REHABILITATION

36. In my view he has good prospects of rehabilitation for the following reasons:

1. He is generally contrite,

2. He accepts responsibility for the wrongfulness of his actions,

3. His honesty and frankness in disclosing his prior drug use. His forecast of willingness to engage in treatment and an intention to cease usage. It is noted that Mr Egan has abstained from the use of illicit substances during his incarceration,

4. He has a strong work ethic and has demonstrated a capacity to be gainfully employed. He is dedicated to re-training and not returning to the trucking industry,

5. He remains supported by his family and close friends. I note that Mr Egan’s father and Kylie Dempsey, and others, are here in court today supporting him, which is consistent with a finding that he has close support of family and friends,

6. He is motivated to engage in counselling and will take medication as prescribed,

7. He has a limited prior criminal history, and he has not incurred any correctional infringements.

SPECIAL CIRCUMSTANCES

37. This is Mr Egan’s first period of imprisonment. The offender has demonstrated his capacity for rehabilitation during his incarceration by seeking out medical assistance, complying with his medication, remaining abstinent from prohibited drugs, engaging in exercise, meeting his spiritual needs and working towards retraining to provide better outcomes for his life post release. The offender suffers from poor mental health. Mr Egan’s symptoms of depression and post-traumatic stress are likely rendering his time in custody more arduous than that of the average inmate. Further, Mr Egan will require assertive treatment when released to help his adjust to community life and equip him with the appropriate coping skills. The offender will also need education and general assistance in respect of drug relapse prevention. The non-parole period will be 60% of the head sentence.

SENTENCE

38. It is agreed between the parties that the commencement date of sentence should be 30 December 2019. I have taken into account all the factors listed in s 3A of the Act. General deterrence is a major consideration.

39. Ms Mendes concedes that the moral culpability of the offender is greater than the applicant Moodie. Moodie’s discount was 5% not 25%. She also referred me to R v Craig Besant [2003] NSW CCA 388. I have read and reviewed the appendix attached to the decision of Moodie in determining what is an appropriate sentence in this case.

40. I sentence Mr Egan to a term of imprisonment of three years and four months. But for the discount, the sentence would have been four years and six months with the appropriate rounding down. The commencement is 30 December 2019. The sentence will expire on 29 April 2023. I impose a non-parole period of two years. Mr Egan will be eligible for parole on 29 December of 2021. He is disqualified from driving for a period of three years.

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Decision last updated: 22 June 2021