R v Jeans

[2019] NSWDC 915

District Court

New South Wales

Medium Neutral Citation:

R v Jeans [2019] NSWDC 915

Hearing dates:

25 October 2019

Decision date:

25 October 2019

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

SEQ 1:

Convicted.

Special circumstances found – first time in custody, need for a longer period on parole to assist with rehabilitation into the community.

Sentenced to a term of imprisonment for 3 years and 6 months, comprising of a non-parole period of 2 years to commence on 25/10/19 and to expire on 24/10/21 and a balance of term of 1 year and 6 months to commence on 25/10/21 and to expire on 24/4/23.

SEQ 2:

Convicted.

Sentenced to a fixed term of imprisonment for 6 months commencing 25/10/19 to be served concurrently with the sentence imposed in respect of Sequence 1.

SEQ 3: Withdrawn and dismissed.

The automatic disqualification period of 5 years is to apply.

*Medical reports to accompany prisoner – copies given to Corrective Services officers in court today.

Catchwords:

CRIME – Sentence - dangerous driving occasioning death - cause bodily harm by misconduct in charge of motor vehicle – manner of driving – role of mobile phone use – moral culpability – family Victim Impact Statements – importance of general deterrence - subjective matters

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Thomson & Houlton (2000) 49 NSWLR 383

Texts Cited:

Driver crash risk factors and prevalence evaluation using naturalistic driving data

Thomas A. Dingus, Feng Guo, Suzie Lee, Jonathan F. Antin, Miguel Perez, Mindy Buchanan-King, and Jonathan Hankey

PNAS March 8, 2016 113 (10) 2636-2641; first published February 22, 2016

Category:

Sentence

Parties:

Regina
Jeans, Lindsay

Representation:

Counsel:
Crown: Mr T Bailey
Defence:
Mr I Lloyd QC
Mr S Tovey
Solicitors:
Crown: Ms E Brown
Defence:
Ms D Markotich

File Number(s):

2018/00126177

Judgment

1. Lindsay Jeans appears for sentence in respect of two offences, the first being dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900. The maximum penalty provided is ten years' imprisonment and there is no relevant standard non parole period.

2. The second offence is cause bodily harm by misconduct in charge of motor vehicle, contrary to s 53 of the Crimes Act. The maximum penalty is two years' imprisonment and there is an automatic mandatory licence disqualification of five years. The offender was committed for sentence on 15 May 2019 from the Griffith Local Court and is entitled to a discount of 25% for the utility of a plea alone as referred to in Thomson & Houlton (2000) 49 NSWLR 383.

3. The facts are agreed and are as follows:

4. The victims in this matter are Raymond Gassman and Katherine Gassman. The victims were husband and wife. The offender was born on 24 November 1957 and is 61 years of age.

5. On Sunday, 18 March 2018, the victims were travelling from Brisbane to Geelong to collect a new family vehicle. The couple had begun travelling on Friday 16 March 2018, in a white Holden Colorado dual cab. On Sunday 18 March 2018, they left Parkes at approximately 9 am and drove through West Wyalong on the Newell Highway. The Newell Highway has mainly single lanes in each direction and is a bitumen road with a constant flow of traffic and a speed limit of 110 kilometres an hour. Between 10.50am and 10.55am, a large dust storm travelled between Mirrool and West Wyalong on the Newell Highway. The storm was thick, red dust, not unlike thick smoke. At this time, Daniel Labinsky was the driver of a Toll truck travelling on the Newell Highway, who had slowed his vehicle to 10 kilometres an hour due to the poor visibility on the road through the storm.

6. At the same time, John Pershouse was driving a Toyota LandCruiser. Due to the storm and slow pace of the Toll truck, the LandCruiser collided with the back of the Toll truck. The Toll truck was able to be moved to the side of the road. The LandCruiser was immovable and took up the laneway. A third driver, Troy McDonald, driving a B double truck, slowed down due to the poor visibility but failed to see the stationary LandCruiser and collided with it, causing the LandCruiser to rotate and end up in the northbound lane facing a north westerly direction.

7. The B double truck travelled a short distance before it came to a complete stop in the southbound lane. A fourth driver, Dianne Smith, was driving a Mitsubishi Lancer and slowed her vehicle to approximately 20 kilometres an hour due to the storm, putting her hazard lights on due to a larger vehicle towing a caravan in front of her. Smith observed the caravan come to a complete stop due to the accident scene in front. All witnesses and drivers agreed the visibility was extremely low and acknowledged the danger of driving.

Count 1

8. The victims were travelling on the same road. The now-deceased Mr Gassman was travelling with driving lights on due to the weather and had slowed down significantly. As they approached the scene of the accidents, the storm made visibility poor but the victims could see the lights of the Lancer in front of them. Mr Gassman stopped the vehicle due to the weather. Mr & Mrs Gassman discussed pulling off the roadway but declined to do so owing to the steep drop.

9. The offender was driving a Scania bus, travelling north on the Newell Highway. The bus was travelling between 95 kilometres an hour to 103 kilometres an hour in the lead up to the accident scene. The bus entered the dust storm with a speed of about 86 kilometres an hour. At 9.58 am, the bus driven by the offender collided with the rear of the victim's utility vehicle at 79 kilometres an hour.

10. Due to this impact, the front of the utility vehicle collided with the back of the Mitsubishi Lancer. The Scania bus hit with such force as to push the Lancer and the utility, with the victims inside, off the road and down the embankment. The vehicles moved in a chain reaction. There was no evidence of braking prior to the collision. The utility was nose down on the embankment. Mrs Gassman was trapped inside the vehicle but conscious. Mr Gassman, however, was going in and out of consciousness and was not responding.

11. Emergency services attended the scene and Mr Gassman was given priority. He was removed from the vehicle and placed inside the ambulance, where his heart arrested. The ambulance officers conducted CPR on him for about 34 minutes. Mr Gassman was transported by helicopter to Canberra Hospital and pronounced dead at 2.58 pm. The cause of death was intracranial and spinal injuries resulting from the collision.

Count 2

12. The second victim, Mrs Katherine Gassman, was in the passenger seat of the vehicle. She was able to get out of the vehicle and spoke to the emergency services and other witnesses to assist her husband. Mrs Gassman incurred fractured ribs, minor scratches and bruises including a large scratch to her head.

Manner of driving

13. The offender was driving a large Scania bus, without passengers. Inside the bus are CCTV cameras. The offender was recorded doing the following prior of the accident at 9.58 am:

1. At 9.28 am, the offender reaches to his left and picks up his driving log book from the floor and places it on the steering wheel. He opens the log book for a short period of time before shutting it and throwing it back onto the floor.

2. At 9.31, the offender again reaches to the floor and picks up his driving log book, places it on the steering wheel for a short time, then closes and throws it to the floor.

3. At 9.32, the offender is holding his iPhone at the top of the steering wheel. At 9.37, the offender is holding his iPhone whilst the bus speed goes to 101 kilometres an hour.

4. At 9.41 to 9.45, the offender is holding his iPhone and accessing the camera roll and scrolling through it. The offender is also holding the phone up to the window and appears to be taking photos of the road in front of him.

5. At 9.57 to 9.58 (the time of the crash), the offender is holding his iPhone on top of his steering wheel and appears to be filming or taking pictures of the road in front of him.

6. The offender was going approximately 80 kilometres an hour at the time of the impact.

7. The brakes on the bus had not engaged 12 metres prior to the impact.

8. The brakes on the bus were engaged at the point of impact when the bus also swerved.

9. Dr Raphael Grzebieta, a consultant engineer, reported on the role of mobile phone use in the collision. The defence commissioned a response from another engineer, Dr Shane Richardson. The following paragraphs represent common ground between the experts:

1. The offender was focused on the approaching dust storm and failed to perceive it as a hazard.

2. The offender would have been distracted to an undefined and unquantifiable extent by using his phone to record his approach to the dust storm.

3. The offender looked and failed to see a hazard, but what he was looking at (ie phone, dust storm or combination of both) cannot be clearly determined from the CCTV footage.

4. By looking at his phone, the offender would have been at least three times more likely to be involved in a crash than non-users, according to a relevant study (Dingus et al [2016]). When the offender noticed the stationary Colorado utility, it was too late to safely stop.

5. The offender saw and reacted very quickly to the brake lights of the victim's stationary vehicle, quicker than the top 5% of the driving population. The accident resulted in the death of Mr Gassman and serious injury to his wife.

14. The experts agreed that the offender was focused on the approaching storm and failed to perceive it as a hazard. They also agreed that he would have been distracted, although to an undefined and unquantifiable extent, by using his phone to record his approach to the dust storm.

15. Although the offender looked and failed to see a hazard, what he was looking at could not be clearly determined from the CCTV footage; ie whether it was the phone, the dust or a combination of both. And, the experts agree that by looking at his phone, he would have been at least three times more likely to be involved in a crash than non-users.

16. I am of the view that the offender's conduct constituted a significant failure to take account of and react appropriately to an obviously adverse environmental condition by significantly reducing the speed of his vehicle or stopping before entering the dust storm. In my view, this is not a matter of momentary inadvertence or misjudgement, but a matter of significant failure to take notice of the danger inherent in entering a dust storm in a vehicle travelling at significant speed, and in those circumstances, I reject the submission made by Mr Lloyd SC that the offender's moral culpability is at the lower end of the scale. In my view, the circumstances indicate that the offender's moral culpability should be regarded as being towards the higher end of the scale of moral culpability in relation to offences such as this, and that this constitutes a serious instance of offending in relation to each of the two charges before the Court for sentence.

17. The Victim Impact Statements of Mr Gassman's wife, Katherine Gassman, and his sons Raymond Gassman and Scott Gassman are eloquent testimony to the consequential adverse impact that offending such as this can have on the family of a deceased person. In addition of course, Mrs Gassman was herself injured in the accident. She lost her almost lifelong partner the day before his 61st birthday. He was clearly an individual who was well regarded and loved by his family. They have been deprived of the comfort and support he would have supplied to them in the coming years, with the expectation that being 61, he would have a significant period of his life left for the comfort of his family. It is unfortunate that Mr Gassman lost his life. It was, of course, not an intentional consequence of the offender's driving, but simply a most tragic result.

18. Before the Court in respect of subjective matters are the following; the expert report of Associate Professor Carroll, dated 1 August 2019; a Neuropsychological Assessment Report under the hand of Mr Staios, dated 22 October 2019; a report from Dr Gary Rose to Dr Perry Short, dated 29 May 2018, outlining matters in relation to the offender including his medical history; and a letter from Dr Donohue to Dr Rose, dated 19 May 2018. In addition, there is a Patient Health Summary, printed 11 July 2019, indicating the offender's then current medications and his past history. There is a letter from Dr Perry Short, a consultant psychiatrist, dated 2 August 2019, who was consulted by the offender after the time of the accident.

19. There is also a letter from Emily Jeans, being the daughter of the offender, dated 16 October 2019; a letter from his partner, Cheryl Hogan, dated 16 October 2019; a letter from Matthew Eli, dated 16 October 2019, being a friend of the offender's; a letter from Carolyn Eli, dated 16 October 2019, who, like Matthew Eli, has known the offender for many, many years; and a letter from Ebony Rundle, who has known the offender for a period of over 20 years; a further letter from David Rossini, dated 16 October 2019, being the former general manager of Tarascon Health, who refers to the offender voluntarily providing assistance by tending the gardens and lawns over what appears to be approximately a three year period on an unpaid basis, a letter from Kelly Herbert, dated 17 October 2019, who has known the offender and his family for the past 18 years; and a letter from Steven Stafford, dated 16 October 2019, being a friend of the family; that is Exhibit J1.

20. In addition, two letters from the offender have been tendered, which he had proposed to provide to Mrs Gassman expressing his contrition and remorse in relation the loss of her husband arising from the accident. I accept that the letters were expressions of genuine remorse and contrition, and I note that there is a significant amount of material in what I have so far referred to in relation to subjective matters which supports the view that the offender is, indeed, genuinely remorseful and contrite.

21. As to his personal history, I accept that it can be appropriately summarised as follows: he is 61 years of age and was born and raised in Melbourne. He is the youngest of four children who were placed in State care from a young age due to neglect from his parents, who suffered from various mental health and alcohol-related issues. He was in State care from the age of five to approximately 16 years, which was a traumatic experience.

22. He left school at Year 9 before moving into factory work. At age 16, he moved in with his older brother before establishing himself in shared housing at the age of 18. At the age of 20, in 1984, he suffered a head injury as a result of a serious motorcycle accident and was in a coma for a week and spent several months in recovery. At that time, he was working as a motor mechanic. He then worked at a service station before starting a 30-odd-year career as a gardener/landscaper.

23. He married his first wife at the age of 27. They had three children who are all now adults, one daughter being a lawyer and the other children being a physiotherapist and a carpenter. Although the marriage ended seven years later, he remained close to his wife and supportive of his children; and the reference materials make it plain that he is not only regarded as a strong and supportive father, but a truly devoted grandparent.

24. He met his current partner at the age of 40 and they have been in a stable relationship for 20 years. His current partner remains his primary source of support. The physical toll of 30 years as a landscaper and gardener was such that he began work as a heavy vehicle transporter, which was ongoing at the time of the offending, although I gather that he was still carrying out some work in landscaping and gardening.

25. Since the offending, he has spent significant periods of time ruminating about the collision and the impact it had on the family of the deceased and upon his own life. He has been diagnosed with PTSD arising from the collision and has constantly re-experienced the aftermath of the collision, difficulty sleeping and nightmares. He has, unfortunately, increased his use of alcohol as a misguided coping mechanism, not having had a problem with alcohol prior to this offending. He has continued to reside with his partner and carry out occasional casual jobs, but he has struggled to occupy his time and constantly returns to thoughts of the offending and its impact.

26. He referred to Dr Carroll about his life as, "My life isn't there anymore". In addition to that material, before me is the offender's traffic and criminal history. He has no criminal history and he has only one entirely irrelevant offence from 1978, of speeding. The offender appears to have led a blemish-free life and to have overcome significant difficulties arising from his childhood.

27. I accept that he can be referred to as an exemplary individual, and I accept that all of the documentary material that has been provided in support of him from his family and friends expresses their genuine views of the offender, acknowledging the support that he has provided to them over the years. Nonetheless, this is a serious offence that has had serious consequences.

28. I have had regard to issues as the risk of reoffending and rehabilitation. I am of the view that there is little or no risk of the offender reoffending and a very good prospect of rehabilitation. I note that he has been diagnosed as a result of the incident as suffering from posttraumatic stress disorder, major depressive disorder and alcohol use disorder; and that he has since the accident, had, intermittent suicidal thoughts which, fortunately, he has not acted on.

29. There is reference in the material to his having sustained a likely brain injury in his twenties in the motorcycle accident, but it appears to have no relationship to this offending. He is said by the neurologist to have made a good recovery, although it still apparently has some minor impacts on his memory. It has been opined by Associate Professor Carroll that considering the offender's PTSD, depression and anxiety and difficulty in coming to terms with the results of his conduct, serving a sentence of imprisonment will be more onerous for him than others with a risk that his suicidal ideation might increase.

30. However, it has been accepted that the presence of the mobile phone has relevance to the overall circumstances of the case. Even though the level

31. of distraction is not definable or quantifiable, part of the Crown material in Exhibit 1 was two videos; one taken in the Scania bus from an internal location above and behind the offender, which shows him handling the mobile phone while driving the bus, which was, fortunately, only occupied by him. At times prior to the accident, he appeared to be operating the steering wheel with his forearms while holding the phone in both hands and operating it.

32. It has long been recognised that mobile phones in particular are a significant distracting factor in relation to the driving of motor vehicles, whether they be motorcars or trucks or semitrailers; that they distract drivers from looking at the core of their current environment and making appropriate adjustments to cope with any changes in it. It is why their use is banned while driving.

33. Although the extent of the distraction is undefined and unquantifiable, it has been accepted that the use of the mobile phone was a distraction. A driver approaching fog or a dust storm such as this always needs to take into account that change in environment, and adjust his or her driving to accommodate it. Driving into the dust storm at a speed of 86 kilometres an hour with uncertain visibility and no information as to whether or not there are other vehicles ahead, either stopped or moving on the road, or indeed, even approaching on the other side of the road, is a significantly dangerous action.

14. As I have said, the offender should have taken note of the dust storm as a significant adverse environmental condition; and either substantially reduced his speed or stopped altogether before entering the dust storm. Doing so while holding or operating a mobile phone was not conducive to his or any other road user's safety.

15. While the offender's past good character and the subjective matters that I have referred to significantly assist him, they cannot overcome the need for sentences in relation to matters such as this to reflect the serious consequences as well as, in particular, the need for general deterrence.

16. The Court must always take into account the purposes of sentencing as referred to in s 3A of the Crimes Sentencing Procedure Act. I have taken all of those matters into account, including the utility discount that I previously referred to. I note that, in my view, in this matter, specific deterrence of the offender is not a significant issue, having regard to what I've said about remorse and contrition, reoffending and rehabilitation.

17. General deterrence remains, however, a significant factor. In those circumstances, the offender is convicted in relation to each of the two counts; that is, dangerous driving occasioning death and cause bodily harm by misconduct in charge of motor vehicle.

18. The offender has spent no time in custody as a result of being charged. Noting Mr Lloyd's submission that the matter can be dealt with by way of an Intensive Correction Order, I note that I am, however, of the view that a sentence of imprisonment of a duration which is longer than would make such a course available answers the question as to whether an ICO can be imposed.

19. The sentence in respect of the offence of dangerous drive occasioning death is to be a non parole period of two years with a balance of term of one year and six months, giving a total sentence of three years, six months. The sentence will commence today, 25 October, and the non parole period will expire accordingly on 24 October 2021. The full sentence, or balance of term, will expire on 24 April 2023.

20. With respect to the offence of cause bodily harm by misconduct, I am of the view that the sentence imposed in relation to the dangerous driving causing death can effectively represent the criminality in respect of both offences. Accordingly, I will impose, in respect that matter, a sentence of imprisonment of six months, a fixed term, to be served entirely concurrently with the last imposed sentence, so that is six months, commencing today.

21. There is a further sequence that was contained on a s 166 Certificate as a backup charge of negligent driving occasioning death, first offence. That will be withdrawn and dismissed.

22. The automatic period of disqualification of five years applies.

**********

Decision last updated: 01 July 2020