R v Gillett

[2005] NSWDC 3

CITATION:	R v GILLETT [2005] NSWDC 3
HEARING DATE(S):	2 November 2004 - 25 November 2004 4 March 2005,
JUDGMENT DATE:	18 March 2005
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Sentenced to imprisonment; Effectivel sentence of 7 years with a non-parole period of 5 years and 3 months.; See paragraphs [52] - [55]
CATCHWORDS:	Criminal Law - Sentence - Dangerous Driving Causing Death - Epilepsy - Abandonment of responsibility
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act
CASES CITED:	R v Chad unreported CCA, 13 May 1997 R v Whyte & Ors (2002) 55 NSWLR 252 R v Jurisic (1998) 45 NSWLR 209 R v Price [2004] NSWCCA 186 R v Wilkins (1998) 38 A Crim R 445 R v Blair [2205] NSWCCA 78
PARTIES:	Crown Ross Gillett
FILE NUMBER(S):	03/11/1112
COUNSEL:	W. G. Roser (Crown) W.C. Barber (Offender)
SOLICITORS:	NSW DPP Ian Rolfe Solicitor

Sentence

1 On 2nd May 2003 the offender was driving home. He said that he planned to call in to see someone on the way. Many other people were also driving home that Friday evening, looking forward no doubt to relaxing over the weekend. But as a result of the offender’s wrongdoing, 3 lives were lost and many more lives were shattered.

2 The offender should not have been driving that day. He only had a driver’s licence because he told repeated lies to the Roads and Traffic Authority. Many times he told them that he did not have epilepsy, but that was not true.

3 The offender displayed an attitude of remarkable selfishness. Each time he renewed his driver’s licence he had a choice: he could choose to either tell the truth which would have meant a possibility of not being able to drive, which would in turn have caused him inconvenience and perhaps hampered his career, or he could choose to lie, and put countless lives at risk. It is not his fault that he suffers from epilepsy – but he is fully responsible for the tragic consequences of his lies. He deserves severe punishment.

4 On 2nd May 2003 the offender did not believe that it was safe for him to drive and he appreciated that whenever he got behind the wheel of a car there was a real risk that he would suffer a fit. He took that risk, with dreadful consequences.

The Collisions

5 Despite being a danger on the road, and knowing that he was a danger on the road, at about 4.45pm on the 2nd May 2003 the offender was driving along Condamine Street at Manly Vale. The weather was fine, the road was dry and it was daylight. Condamine Street is a major road and there was the usual Friday evening build up so that the traffic was moderate to heavy. As the offender approached the corner of Condamine Street and Campbell Parade he had a seizure and lost control of the vehicle he was driving. At about the same time the traffic lights facing him changed from green to amber. The car in front of his was driven by Dr Currie who slowed her car intending to stop at the traffic lights. The offender’s car ran into Dr Currie’s car with such force that her car spun and was pushed into the middle of the intersection.

6 The offender’s car did not stop after this collision. He was not in control of himself or the car. His arms and legs stiffened, forcing the accelerator downwards and causing the car to speed up. It continued along Condamine Street towards the intersection of Kentwell Road. The traffic in front had banked up, a common occurrence because of the traffic lights at the intersection of Condamine Street and Kentwell Road.

7 The car immediately in front of the offender’s was a green Mitsubishi Lancer driven by Cameron Howie with his wife Shannon Howie in the front passenger seat and their young daughter, Michaela Howie in a child’s car seat in the back. The offender’s car ran into the rear of the Howies’ car forcing it not only forwards but also to the right, across the median strip and into the path of oncoming traffic. One of the oncoming vehicles was a 4-wheel drive Nissan Patrol driven by Mr Michael Fuller. He was travelling at about 60 kph, that being the speed limit. There was nothing he could do to avoid colliding with the Howies’ car. The force of the impact between Mr Fuller’s heavy 4-wheel drive and the much lighter Mitsubishi sedan was enormous. The smaller car was destroyed, killing all 3 members of the Howie family.

8 Still the offender was unable to stop his car, because he remained under the influence of the seizure. He continued along in a northerly direction until he collided with yet another car, this a Toyota Corolla driven by Mr Peter Wiebe. The offender’s car, having pushed the Howies’ car out of the way, had continued on until it collided with the rear of Mr Wiebe’s car. Finally the offender’s vehicle came to a stop.

The Harm the Offender has Caused

9 As I have already said, 3 people were killed and the lives of many others shattered. A significant part of the sentencing proceedings was appropriately taken up by the reading of a number of victim impact statements. It is appropriate that those who suffer most from the commission of offences are able to reveal, in a public way, the harm that they have suffered because of someone’s wrongdoing. As I said at the time:

“It is appropriate that I acknowledge the devastating impact that this tragedy has had on so many people. Their loss is enormous, their pain is ongoing and their suffering overwhelms them.”

The Offender’s Background

10 The offender grew up on the northern beaches, attending Manly Boys High School and Seaforth Technical College. He did some clerical work upon finishing his education before joining the Naval Reserves and, shortly thereafter, getting a job with the Navy as well. At the time of the collision he was employed as a public relations officer and was very highly received in that position. He has written a number of well regarded books and in 2001 he was awarded the Order of Australia for service he had given to the Navy.

11 He joined the Australian Volunteer Coast Guard in 2000 and donated his time to that organisation, and the people it helps of course, one day every 4 weeks

The Offender’s Character

12 Apart from a series of lies told by the offender in order to cover up his epilepsy from those who needed to know about it, the offender is otherwise a man of good character. The evidence that I heard in the trial as to his character was supplemented by oral and written evidence during the sentencing hearing. I accept, and will take into account, that the offender has done much to be proud of. He has given up a great deal of his time on a voluntary basis to help others. He has acted bravely and indeed some suggest he has even saved lives. He worked hard and was a valuable member of the community.

13 I do, however, have difficulty in accepting the basic thrust of much of the character evidence. This was that the offender was “honest and trustworthy”. Many of the character witnesses had difficulty reconciling their view of the offender with his history of covering up, or to put it more bluntly, lying, about his epilepsy. At least one tried to minimise the misconduct by suggesting that what he had done was merely to “tick the wrong box” on the RTA form.

14 Those who had formed the opinion that he was honest and trustworthy did so without knowing that he had told lies when applying to join the Naval Reserve, when getting a licence to drive a boat and most importantly when applying for and renewing his driver’s licence. That they remained of the view that he was honest and trustworthy even after learning of these lies is puzzling. I do accept that they genuinely believed him to have that character but I do not accept that their opinions are accurate.

15 Character is of course not indivisible and a man can act honestly and trustworthy in some areas of his life and not others. That is what the offender seems to have done. In every aspect of his life, apart from that most relevant to the present case, the offender seems to have been a man of good character.

16 However good character is commonplace in offenders who are to be sentenced for offences of this nature. And where a person had displayed exemplary conduct and even heroism in one part of his life but acted dishonestly and criminally in another part of his life, less weight must be given to the evidence of good character of the offender (see R v Chad, unreported, CCA, 13 May 1997).

The Moral Culpability of the Offender

17 I received written submissions from both the Crown and Mr Barber on behalf of the offender. Appropriately a great deal of attention was paid to the guideline judgements of R v Whyte & Ors (2002) 55 NSWLR 252 and R v Jurisic (1998) 45 NSWLR 209.

18 There has been something of a trend to treat those guideline judgments as though they are legislation. That is not the way they are to be interpreted. In particular I do not believe that there is a bright line between those cases where the offender has abandoned responsibility for his actions and those cases where the offender has not. As I understand the judgments, the concept of abandonment of responsibility is one way of assessing the moral culpability of an offender. It is necessarily an imprecise concept.

19 One of the matters, and perhaps one of the most important matters, that must be determined in this present case is the level of the offender’s moral culpability and, amongst other assistance to be gained from them, the guideline judgments are helpful as indicating the sort of factors which should be looked at in determining that issue.

20 In the prisoner’s favour is the circumstance that he did not appreciate fully the level of risk that he represented to other road users in May 2003. This is because, unbeknownst to him, he was at that stage developing sleep apnoea. That condition is a well known and a well-accepted trigger for epileptic fits. I am satisfied that it was that condition which led to a significant change in the way the offender’s epilepsy manifested itself. He did not know that he was developing sleep apnoea and so his moral culpability is lower than it would have been if the offender had been aware that it was.

21 On the other hand there are of course factors pointing the other way. I will set them out. They demonstrate, I am satisfied, a high level of moral culpability.

22 By the offender’s lies, and repeated lies, he denied the authorities the opportunity of assessing his suitability to drive. The RTA never sought any advice as to whether it was safe for the offender to drive because he told them that he did not suffer from epilepsy when that was not the truth. He told lies to the RTA in 1990, 1995 and 2000. I have found the reason the offender told those lies was because he believed that if he told the truth there was a risk that his licence would be taken from him. This is perhaps the best indication of all of the offender’s moral culpability. It was a deliberate series of lies which were motivated by the offender’s desire to keep driving and a willingness to run the risk that he would injure someone if he suffered a fit.

23 Although of course I have to assess the offender’s moral culpability on the 2nd May 2003 I am entitled to take into account what earlier circumstances reveal about the offender’s attitude towards his epilepsy and driving. In particular there is the circumstance, which I referred to in my judgment and verdict, that he was driving in May 1987 despite having 3 daytime seizures earlier that year and a daytime seizure in 1986.

24 Then in 1993 he suffered a fit while driving which led to a collision between his car and 2 others. I am satisfied that the offender was aware that the collisions on that occasion also resulted from an epileptic fit. Fortunately no one was injured on that occasion, but that should have brought home to the offender the risks that he represented to other road users. Surprisingly, the offender continued to drive. Indeed there has been no suggestion that he ever took himself off the road at any stage of his life, even when having a daytime seizure was a common occurrence.

25 After the 1993 incident the offender renewed his licence. Almost exactly 2 years later, on the 14th August 1995 the offender filled in his licence renewal form and denied that he had epilepsy. When asked by Mr Barber in the trial why he had answered “no” to the relevant question, he said that he “felt that the drugs were controlling me perfectly”. However he had not changed his medication between 1993 and 1995 and being aware, as I have found, that the 1993 collision resulted from him having a seizure, the lie told to the RTA on the 14th August 1995 cannot be justified by the offender in that way.

26 The offender at no stage believed that taking his medication meant that he would not have a seizure. He said that Tegretol which he was prescribed after seeing Dr Beran following the incident in 1986 reduced the chance of him having a seizure “a hell of a lot”, but in light of his history of daytime seizures after taking the medication, he could not have “felt that the drugs were controlling me perfectly” as he said in evidence in an attempt to justify his lie to the RTA in 1995.

27 Dr Worthington, one of the doctors consulted by the offender, did actually raise with him the question of whether he should continue driving. The offender said that he told Dr Worthington that he didn’t drive all that much. Evidence in the trial from the offender himself indicated that only a very generous interpretation of that phrase would allow it to be consistent with the offender’s driving. It was Mark Twain who first suggested that truth should be used economically and only someone prepared to be economical with the truth, or who was putting a spin on things, could have described the offender’s driving as minimal.

28 Dr Worthington told the offender of his concern about his failure to inform the RTA about his seizure disorder in August 2001 less than 2 years before the 2nd May 2003. In assessing the offender’s moral culpability I take into account that he was warned by Dr Worthington about the risks he represented, but continued driving nevertheless.

29 It is also relevant to the offender’s moral culpability that these fits, the offender well knew, came upon him without warning. The offender knew even without being aware of his sleep apnoea that there was a significant risk of him having a seizure whilst driving. The offender was aware that when he suffered a daytime seizure it came upon him unannounced. The offender knew therefore that if he suffered a seizure whilst driving he could do little if anything to avoid the consequence that the car he was driving would continue out of effective control whilst the seizure ran its course.

30 Many of those who commit an offence of this nature drive dangerously for only a short time. Some are inattentive for mere moments. It is an aggravating circumstance of this type of offence if there is a prolonged course of dangerous driving. The present case is unusual in that, over an extraordinary period of time, the offender was prepared to take the risk that he would kill someone if he lost control of his car. He knew that if he did have a seizure while driving there was nothing he could do to control the car and that therefore it would continue on until it ran into something to stop it. The sort of thing which happened on 2nd May 2003, with the accused’s car running into 3 others as it hurtled down Condamine Street, was the predictable result of the offender having a seizure whilst behind the wheel

31 As I said in my earlier judgment and verdict in this matter, the offender was not afraid of his licence being unfairly taken away if he told the truth – he was afraid that if he disclosed that he suffered from epilepsy, any subsequent investigation by the RTA, undertaken by them before deciding whether or not to renew his licence, would reveal his true medical state. The offender knew that this would have gone beyond the simple fact of his epilepsy. He knew that the investigations would have revealed the history of his seizures, their frequency, their effects upon him, the fact that they came upon him without warning, and the fact that medication had not prevented them.

32 Sometimes the number of people put at risk by the offender’s driving can be a relevant factor in assessing his moral culpability. In one sense there were people put at risk every time the offender got behind a wheel, those risks increasing as the offender’s sleep apnoea developed. Even just looking at the 2nd of May 2003 it must be remembered that Dr Currie, Peter Wiebe, Michael Fuller and Thomas Fuller were lucky to escape uninjured.

33 At times in sentencing there is a tendency to focus on the offender and to almost put the offence to one side. But in truth the objective gravity of an offence is a fundamental consideration which must be at the forefront of the thinking of any sentencing judge. And in assessing that objective gravity, the moral culpability of the offender must be firmly borne in mind.

34 So given: the offender’s repeated lies to the RTA; the offender’s decision to keep driving after the seizures in early 1987; the offender’s decision to keep driving after the 1993 collisions; the offender’s decision to keep driving after the warning given to him by Dr Worthington in 2001; and the fact that the offender knew that he had no warning of a seizure; I am therefore satisfied that the moral culpability of the offender was very high indeed. I make this finding fully aware that the offender did not know that he was developing sleep apnoea.

35 He knew he was a danger on the road, and that he should not have been driving. Nevertheless, for his own purposes, he decided to run the risk that he would kill or injure someone if he suffered a seizure while driving.

36 Deaths which could have been easily avoided are amongst the most tragic. Those that are left behind are burdened by the overwhelming knowledge that those killed died completely unnecessarily. All it took for the deaths of the Howies to be avoided was for the offender to be prepared to put up with the consequences of being unable to drive.

37 It would have been an inconvenience for the offender if he had been unable to drive. Maybe his career would have suffered too, particularly if the reason he was unable to drive became known to the Navy (as of course it should have been anyway). Perhaps then he would not have been able to write the books of which he is proud. Perhaps he would not even have been able to do the good work which led to him having been awarded the Order of Australia. But a desire to avoid inconvenience and a desire to do good work does not justify the offender risking the lives of others on the road, all of whom have lives filled with promise and whose deaths are devastating to those left behind.

38 The offender has no prior criminal history though he does have a number of driving matters on his traffic record. I have taken into account the lack of any previous convictions although, as I have noted, such a circumstance is relatively common when sentencing for offences of this nature.

39 There was some dispute between counsel as to a matter of fact - namely whether the offender would serve his sentence on protection. I accept that because of the nature of the offender’s offence there is a risk that he will serve his sentence on protection and there is a risk that he will therefore serve his time in custody harder than would otherwise be the case. Whether in fact he will serve his sentence on protection, and perhaps more importantly whether if that happens he will do his time harder, remains to be seen. Nevertheless as I have said I will take into account that those risks are present.

40 I am satisfied that the offender is unlikely to re-offend and indeed I am hopeful that he will never be given the opportunity to re-offend in this way and will be making a recommendation at the end of this sentence that the offender never again be licensed to drive. In those circumstances his prospects for rehabilitation are somewhat irrelevant although I must say that I have my doubts as to whether, even after the events of 2nd May 2003 for which the offender is responsible, the offender could be trusted to tell the truth where it is to his apparent advantage to lie.

Remorse

41 There was some evidence on which Mr Barber relied in order to suggest that the offender was remorseful. I accept that the offender is remorseful because he is concerned for his family. I accept also that the offender is profoundly saddened by the circumstance that he was involved in a collision in which 3 people died. I am not convinced however that the offender fully accepts responsibility for those deaths. When Mr Gillam, a witness called on the offender’s behalf, was asked to explain how it was that the offender felt extreme remorse and sorrow he answered in terms which suggested that the offender was most concerned for his innocent family. That is somewhat different to the remorse a person feels when he or she accepts the wrongfulness of their conduct.

42 The situation is, I am satisfied, similar to that referred to in R v Price [2004] NSWCCA 186 where Simpson and Howie JJ (who I understand is no relation to any of the Howies involved in this case) say this:

He may be remorseful for the consequences of the accident, and he may genuinely feel sorrow for the loss suffered by the families. We have little doubt that he would wish to turn back the clock. But true contrition does not arise without an acceptance of guilt. This lack of contrition affects both the measure of denunciation required in response to his conduct resulting in the death of two young persons and the prospects of his rehabilitation.

General Deterrence

43 These proceedings and the sentences I will soon impose should serve as a lesson to those who may be tempted to act dishonestly, indeed criminally in order to be allowed to drive. The sentences I impose on the offender need to reflect a substantial component of general deterrence. The roads are dangerous enough even when drivers are sober, awake, and fit to drive. General deterrence requires that the sentence I impose on this offender serve as a warning to others who may be tempted to risk the lives of road users by driving when it is not safe for them to do so.

The Sentences will not be Concurrent.

44 I will not impose concurrent sentences. It has never been the law that simply because 3 offences arise out of exactly the same circumstances they should be dealt with by concurrent sentences. Indeed many years ago in R v Wilkins (1988) 38 A Crim R 445 an offender who killed 3 people had his sentences accumulated to the extent that the total sentence exceeded the maximum penalty for a single offence.

45 In Price the Court said:

It will rarely be the case that sentences for multiple offences of dangerous driving causing death could be made wholly concurrent. Because… the criminality in the offence is not simply derived from the culpable act of driving without having regard to the consequences, the fact that more than one person is killed means that the criminality will not usually be sufficiently comprehended by a sentence that is appropriate for a single offence.

46 The sentences will not, however, be totally cumulative. The principal of totality of course operates in this case.

Aggravating Features in s21A Crimes (Sentencing Procedure) Act

47 In his written submissions, the Crown Prosecutor said that there were a number of aggravating features as listed in Section 21A(2) present in this case. I do not accept what the Crown Prosecutor submitted:

• The offender does not have a record of previous convictions in the sense I understand 21A(2)(d) to be directed (see R v Blair [2005] NSWCCA 78).

• I regard the aggravating features in Section 21A(2)(g) and (i) as elements of the offence.

• I do not accept that the offender abused a position of trust or authority as those terms are used in paragraph (k).

• Each individual offence involved only one victim and the offence was not part of planned or organised criminal activity.

• The possibility that the offender is a risk to society will depend on whether he gets his licence back. As I have said if my recommendation is followed that will not happen.

Special Circumstances

48 Mr Barber asked me to find special circumstances in this case. True it is that there are present in this case matters which have, in the past, been considered by the Court of Criminal Appeal to be capable of amounting to special circumstances. I refer in particular to such things as this being the offender’s first custodial sentence and the possibility that the offender will serve his sentence on protection. But I know of no case which says that such factors must invariably result in a variation from the statutory ratio.

49 I do not consider that the offender will need any assistance at all in rehabilitating himself once he is released. The offender’s plans for the future, and the support of his family and friends will mean that the offender, I am satisfied, will require no supervision upon release. Even if he would benefit from supervision, the period of eligibility for parole is sufficient. In any case the effective non-parole period I will shortly announce is the shortest I can impose which adequately reflects the objective criminality of the offender’s conduct.

50 The overall sentence will reflect the statutory ratio but because I am accumulating, the individual sentences will not.

Disqualification

51 I do not have the power to disqualify the offender from driving for the rest of his life. Nor should I circumvent that limitation by ordering a determinate period of disqualification which amounts in effect to disqualification for life. Instead I will disqualify the offender for driving for a period of 10 years from today. It is my strong recommendation, which I ask the Crown to convey to the RTA, that he never again be allowed to drive. He can not be trusted to tell the RTA the truth about his ability to drive, and there is a real risk that he would conceal from them matters relating to his medical condition which make him a danger on the road.

Sentences

52 On Count One which concerns the death of Cameron Douglas Howie the offender is sentenced to imprisonment for 5 years to commence on 25th November 2004 which is the day on which the offender first went into custody in relation to these offences. That is a fixed term because of the other sentences I will now impose.

53 On Count 2 which relates to the death of Shannon Howie, I set a non-parole period of 3 years and 9 months to commence on the 25th November 2005. This will expire on the 24th August 2009. The total term of this sentence is also imprisonment for 5 years.

54 On Count 3 which relates to the death of Michaela Howie, I set a non-parole period of 3 years and 3 months to commence on the 25th November 2006. This will expire on the 24th February 2010 on which day the offender is eligible to be released to parole. The total term of this sentence is once again imprisonment for 5 years.

55 The overall sentence is thus one of 7 years with a non-parole period of 5 years and 3 months.

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