R v Miletic

[2006] NSWDC 114

CITATION:	R V Miletic [2006] NSWDC 114
HEARING DATE(S):	07/04/06,29/05/06,28/07/06,20/09/06
JUDGMENT DATE:	2 November 2006
JUDGMENT OF:	Williams DCJ at 1
DECISION:	Offence proved; Convicted; Section 9 Bond
CATCHWORDS:	Negligent Driving Causing Death - Back up Charge to DMD causing death - Acquitted of principal charge - Interests of justice - Same facts and allegation of negligence - Driver falling asleep - Distinction between DMD and Negligent driving
LEGISLATION CITED:	Criminal Procedure Act 1986 s166, s167(1A), s169(1) Road Transport (Safety & Traffic Management) Act 1999 s42
CASES CITED:	Dennis v Watt 60 WN 7 R v Kroon (1990) 52 A Crim R 15 Jiminez v R (1992) 173 CLR 572 McBride v The Queen (1966-67) 40 ALJR 57
PARTIES:	Regina Mario Miletic
FILE NUMBER(S):	05/41/0111
COUNSEL:	Crown: Mr R Willis Defence: Mr J Pappas
SOLICITORS:	DPP Wollongong Ms Foliaki-Singh

- 1 -

1 Preliminary issue

2 Mr Miletic was tried before me and a jury in Queanbeyan on 20th February 2006 on a charge of Drive in a Manner Dangerous causing death, the allegation being that he went to sleep at the wheel. He was acquitted but there was a back up charge of “negligent driving causing death”. This charge is now before me by virtue of s166 of the Criminal Procedure Act.

3 Mr Pappas, who appears for Mr Miletic and appeared for him at the trial, has raised a preliminary issue in that I should not deal with the related/ or back up offence because “it would not be in the interests of justice” to do so.

4 S167(1A) permits me to deal with a related offence unless to do so would not be in the interests of Justice. S169(1) provides that I can remit a related matter to the Local Court if it is in the interests of justice to do so. More importantly the section also provides that if I do not deal with the related offence, then the offence must be remitted to the Local Court to be dealt with.

5 What seems to be clear from these two sections is that if for any reason, including a reason involving the interests of justice, I decline to deal with this related offence, then the offence must be remitted to the Local Court to be dealt with.

6 As a matter of practicality, it would not be appropriate to remit the matter to the Local Court because I have heard all the evidence and am familiar with the case.

7 Mr Pappas argues that, for a number of reasons, I would find that it is not in the interests of Justice to deal with the offence. They are that

1. There is some evidence to suggest that the victim’s family don’t wish to pursue the matter any further,
2. The matter was unable to proceed on 28th July 2006 when it was listed for hearing before me in Sydney because the Crown Prosecutor was not available and Mr Miletic has been put to additional and unrecoverable costs, and
3. Matters raised in a letter from Mr Miletic’s solicitor dated 20-04-2006, which was in the nature of a no bill application, setting out a variety of reasons why the matter should not proceed.

8 Apart from anything else, in my view the matters referred to above would not constitute matters of such sufficiency as to raise an issue of they being, individually or collectively, contrary to the interests of justice. However, it also seems to be the case that even if I came to that view and declined to deal with the matter, it would still be remitted to the Local Court by virtue of s169(2) and in my view for that to happen would not be in the interests of justice.

9 The background to this matter

10 The Crown argues the same case it argued before the jury in that Mr Miletic had notice of his tiredness and was thus guilty of negligence in continuing to drive. The case of Dennis v Watt 60 WN 7 is cited in support. However, the real test as laid down by that case, as well as other more recent cases, such as R v Kroon 1990 52 ACR 15 and Jiminez v The Queen 1992 173 CLR 572, involves a consideration of whether or not the driver had any warning of he or she falling asleep in all the prevailing circumstances.

11 As King CJ said in Kroon’s case at p 46, a decision that the High Court approved in Jiminez:

“If a driver who knows or ought to know that there is a significant risk of falling asleep at the wheel, continues to drive the vehicle, he is plainly driving without due care…”

12 The facts in the present case are that there was a fatal accident which occurred at about 1am on Sunday 26 September 2004. Mr Miletic was the driver of a vehicle in which were two companions, Chris Armstrong and Timothy Paine, the young person who was killed in the subsequent crash. The group, together with another carload of young men, who were well ahead of Mr Miletic’s vehicle, were returning to Canberra from the Batemans Bay area, having travelled down there the previous Friday at about 10pm, arriving at about 12am.

13 The group fished at a variety of locations. Slept and ate until a decision was made late on Saturday night to return to Canberra. Apart from Mr Miletic’s record of interview this is little evidence of how or why the accident occurred as Chris Armstrong, the other passenger, was asleep at the time. The evidence from the various witnesses as to who slept, where they slept and for how long during the course of the previous twenty-four hours, varies from witness to witness and in my view is unreliable as some of the persons involved had been drinking.

14 Chris Armstrong said that as they left Batemans Bay he offered to drive but Mr Miletic said that he was fine. Mr Armstrong suggested to Mr Miletic that he wind his window down and put the music up. Mr Armstrong did not have a licence and he offered to drive because he said that he knew that Mr Miletic was tired because he had had to wake Mr Miletic up and Mr Miletic had not had much sleep that day.

15 How reliable this evidence might be is questionable. On the same page of the transcript, p 54, Mr Armstrong said that he took his seatbelt off, grabbed a pillow and a blanket and went to sleep on the back seat. Yet two questions later he said, “we all had our seatbelts on when we were driving”. He also conceded that he could not be accurate as to how much sleep Mr Miletic had had as he did not have him under observation the whole day and certainly not when he, himself, was asleep.

16 Mr Miletic did not give evidence at trial but his record of interview was tendered. The interview took place on 26 November 2004, two months after the accident. The accident occurred on the Kings Highway along a relatively straight and flat section of road bordered in the direction of travel by numerous mature poplar trees, one of which the vehicle struck before overturning and coming to rest next to a large sign which perhaps, prophetically, said “every two hours stop revive survive”. The vehicle was severely damaged in the accident.

17 The record of interview

18 Mr Miletic was asked at question 37 how the collision occurred to which he responded:

“Well basically how that collision occurred, we were driving down the road in Braidwood and what I remember is I was driving and I was feeling tired. I was thinking of pulling over at the next - and there is an indecipherable bit - sign and then to what I remember there was a white flash and waking up just before the collision, hearing a big bang and then flashes of basically being upside down is to what I remember.”

19 He then went on to describe what he could remember happening after the accident.

20 The interviewer took up this issue of tiredness and asked, “you were feeling tired” to which he replied, “yeah”. He was asked, “you had a feeling that you were going to pull over at the next driver reviver station” to which he replied, “yeah, yeah that was the thought”. He was then asked, “your next recollection was of waking up just prior to the collision” to which he responded, “yeah”. He was then asked, “do you recall where you were before when you were feeling tired” to which he responded, “no I don’t. I didn’t really know that area that well because basically that’s the first time I had driven down there and yeah I didn’t even in the way know where we were at the coast due to I was following my friend so I have never been down - I haven’t been down to the coast in about three or four years before that. So, yeah.” He was then asked, “all right, when you stated that you woke up just before the collision, can you tell me what point that was” to which he replied “when I woke up all I know before I woke up was actually seeing trees close to the car and sort of correcting but by the time I thought of that it was all - heard was the bang and I can’t really state where we were because every road was dark and cause there were so many trees”.

21 He was then asked, “what’s your first memory before the collision” to which he replied, “my first memory before the collision was actually driving down the actual road with all the trees, seeing all the trees and everything basically looked similar, what where we were driving”. He was then asked, “now you mentioned that you were feeling tired. Are you able to explain to me what those feelings were” to which he replied, “basically I yawned once or twice prior driving and I was - I just thought, yeah normally when I do yawn I know I am going to be tired so which is why I was driving in”. He was asked, “are there any other symptoms that you may have felt” to which he replied, “no, a bit of body, like body was a bit tired. I could feel that but not as bad as what I would have thought”.

22 In later questioning he revealed that he had the car windows up because it was cold but he did not have the heater on in the car and the last driver reviver station he went past before the collision was one that was close to where he had to pull over for Tim to throw up. He went on to say…”there was one before that I am pretty sure to what I remember”.

23 He told police that he had stopped there for about five or ten minutes or not even that and he was feeling still all right at that point of time. He was asked how long in time it was between that point and where the collision occurred and he indicated about an hour’s worth of driving. He was asked how he was feeling during that period and he said:

24 “Halfway through that I was - I was starting to feel the tired. I yawned like I said a couple of times and then that’s when the thought came to my mind, next time, next time I want to pull over”.

25 He indicated that that had occurred about fifteen minutes to half an hour before the accident occurred. He told police that during that period of time, Chris and Tim were asleep and had been basically asleep for the whole of the trip. That the radio was on in the car but not on very loud and that although the car had a heater in it, he had not turned the heating on.

26 He was then asked at question 66:

“At that time did you feel that it was prudent to continue driving the way you were feeling?”

27 To which he replied:

“At that time I - I felt I still could drive properly but the thing was that like I’ve never been in an incident like this and I felt all right until it actually happened and I mustn’t have known how tired I was or - but I didn’t feel that tired because I could still see the road, I could still see everything.”

28 He indicated that from the place of the accident to home was about forty-five minutes to an hour and that he had been following a vehicle in front driven by Vlad Vujneski, although that vehicle was out of sight. Mr Miletic was driving slower than the other vehicle because the car that he was in did not have high beam and he was worried about cattle and kangaroos. He said:

29 “I wasn’t speeding cause that was the main worry if I was going to hit a kangaroo or something like. At the most I would have been doing 80, 80, 90, not even 90. I wouldn’t have been doing. I was slowing down even more because of the scare. I just don’t like driving - and the interview says, with high beams, but I think it should be without high beams, - especially in areas like that.”

30 He told police that there was no fog, that he was not familiar with the area, that this would have been the first time that he had driven on the Kings Highway and at night. He later told police that on the Friday before he thought that they had left Canberra at about 7.30pm and stopped in the Ulladulla area at about 12am when they started fishing. They fished for a couple of hours and then drove down to the beach and slept for a bit, about four to five hours. He got up at about 8 o’clock in the morning and then on the Saturday, basically in the morning he said, “we went to the shops. We went there, got some food, fell asleep again on the actual grass at the shops. I slept for a couple of hours because I burn myself pretty bad. About two to three hours and then we went down to the beach. Three of the boys went for a swim at the beach”.

31 Later in the day he spoke about having a fire and sitting on the towels and a few blankets and basically talking all night and enjoying the night on the beach until they left. He was asked to estimate how he thought he had four to five hours sleep to which he responded that it was “because we stopped off and I was tired. I know - I knew I needed some sleep”.

32 All up he thought that on the Friday and Saturday he had seven to eight hours of sleep and that when he left the Ulladulla area he was actually feeling all right. There were no vehicles in front or behind him in during the course of the trip.

33 He was then taken back to what occurred shortly before the accident and he said that when he actually did wake up

“all I was, thought in my mind is, I saw trees close to me, was to correct and - but by the time that was it was half a second, not even that, of the bang noise.”

34 He remembered the vehicle travelling along the bitumen and, just before the collision, over grassy ground. He said that nothing had distracted him prior to the collision either inside or outside the car and that he had no problems with his eyesight. He was asked to describe the quality of sleep that he had had on Friday and Saturday and he responded:

35 “The quality, well every time I sleep it’s in a deep sleep. So after I woke from sleeping at the shops I felt refreshed. I felt pretty decent.”

36 Finally he was asked, “Is there anything you may have been able to do which may have prevented the collision” to which he responded, “well the one thing I feel that I could have done is actually slept that night too and left in the morning”. He was asked, “is there a reason why you left that late at night”, to which he respond, “well one reason was that I was in a way so look on I didn’t really want to leave that time and because of my mate’s car he said let’s go, let’s go. We can get home early and two other people. Yeah, we sort of wanted to go too so.”

37 After the record of interview, Mr Miletic also provided to the police a letter which, amongst other things, said as follows:

“It’s my view that whilst I have some flashbacks I cannot independently recollect the events at the time of and just prior to the collision. I’ve been filled in by rumours and details provided by others, including police. I am, however, able to provide the following information. Two car loads of friends left Canberra on Friday evening to travel to Ulladulla for a fishing trip. We slept on the beach or in our cars. We left Ulladulla around 8.30 to 9pm on 26 September to return to Canberra. My friend Vlad Vujneski drove the other vehicle and he had two passengers, Peter and Daniel Murphy. I was asked to drive Tim’s car as Tim didn’t feel well. Pete’s brother Chris was in Tim’s car with Tim and I - I remember Tim saying that he had to throw up and thinking, I had to look for a driver reviver stop, to stop. I cannot provide you with any other independent recollections and I have concerns at what I - at what I may provide maybe what someone else has told me occurred and not my memory of things.”

38 Other witnesses were called, namely Daniel Murphy, Peter Armstrong and Vladimir Vujneski. Each of these young men were in the vehicle that was ahead of Mr Miletic’s vehicle so are unable to give any evidence as to how this collision occurred. They returned to the scene after receiving a telephone message. Each of them gave evidence as to what the group had been doing in the Batemans Bay area in the preceding twenty-four hours and, as I have already indicated, having regard to the length of time that has elapsed since these events occurred and the alcohol that was consumed, it would not be appropriate to rely on evidence that has been given as to who was asleep, when they were asleep and for how long. It is fair to say that given the circumstances, the evidence is inconclusive in that regard.

39 Resolution

40 The Crown argues that the evidence is clear that Mr Miletic was tired, that he was aware of his tiredness but continued to drive. There was nothing to prevent him from pulling over immediately and taking a rest but he continued to drive in that state and in all the circumstances that amounts to negligent driving on his part.

41 The mere fact that someone is tired and drives a motor vehicle could not, of itself, establish criminal negligence to the required degree. There are all sorts and degrees of tiredness and it would not be appropriate to set a particular standard, given the variety of circumstances that could be in operation prior to a particular event. The degree of neglect or carelessness or inattentiveness necessary to establish negligent driving has been held to be less than what is required for the more serious driving offences set out in the Crimes Act.

42 Negligent driving is governed by s 42 of the Road Transport (Safety and Traffic Management) Act 1999 which provides the statutory framework for this offence. Negligence is un-defined, although the consequences if the offence is found to be established, are different where the negligent driving results in death, grievous bodily harm or otherwise. Negligent driving causing death attracts a maximum penalty of eighteen months imprisonment and/or a fine of thirty penalty units for a first offence.

43 I have been referred today in argument to parts of two cases. The first being the case of R v Buttsworth 1983 1 NSWLR p 658, particularly some passages that appear at pp 664, 665 and 666. O’Brien CJ of the Criminal Division, was discussing the history of the legislation regarding the sanctioning of matters to deal with motor cars.

44 At the top of p 665 he said:

“Since what was to be punished was a neglect of duty, it followed that the primary distinction must be found in the culpability of the neglect. There must be degrees of negligence with the offences and penalties adjusted accordingly and, indeed, that is the case.”

45 His Honour went on to say further at p 666:

“I see no basic flaw in speaking of the degree of risk of the risk it involves, in other words of the degree of negligence or lack of care it demonstrates. I think it wrong, therefore, to say as a general proposition relating to a summing up where driving offences are charged, that dangerous driving is not at the same time negligent driving or to say that driving in a manner dangerous to the public is not at the same time driving which exhibits negligence.”

46 His Honour then went on to say:

“The differences in the various expressions for negligence used in this field of the criminal law lie, as I see it, fundamentally in the degree of risk to the safety of others which they are intended to define and the authorities in my view support such an approach.”

47 Mr Pappas also referred me to the case of R v Saunders 2002 133 ACR 104 which was a case that the Crown had referred to in his written submissions. The Court quoted from a passage in an unreported decision of R v Goodman where this was said:

“The jury had to determine whether the conduct of the appellant amounted to a serious breach of what they considered to be the proper management and control of a vehicle upon a public road, so serious as to be in reality a potential danger to other persons on or in the vicinity of that road.”

48 Mr Pappas sought to make the distinction between, or to separate out, conduct which amounted to a serious breach of the proper management and control of a vehicle upon a public road and the other concomitant ingredient of the more serious offence, that such conduct was, in reality, a potential danger to other persons, looked at objectively. I would follow and adopt the remarks of the Courts in those two cases.

49 In his record of interview, Mr Miletic stated that he remembered he was driving and feeling tired. So tired that he was thinking of pulling over at the next, what I presume, was a driver reviver station sign. He apparently did not reach such a sign before the accident. He drove for about fifteen minutes, feeling this way, at about eighty kilometres an hour which would be a distance of about twenty kilometres. He fell asleep and lost control of the vehicle.

50 It could not be said that the preceding twenty-four hours had been a normal day of rest, sleep and recreation. The previous Friday night, after work, the group had driven to Ulladulla arriving about 12am or 12.30am and had then fished for some hours before having a sleep. Other activities occurred during the day, interspersed with periods of sleep. On the night of the accident, the group had been variously talking or sleeping. Mr Miletic does not speak of being woken up by Mr Armstrong prior to leaving for Canberra, although Mr Armstrong says that he, Armstrong, was asleep and was woken up to go home. He then woke Mr Miletic and his brother Peter Armstrong.

51 Peter Armstrong seems to think that Chris woke him up but his memory in any event was not good and he was affected by alcohol. He sort of agreed, in cross examination, that he had said in his police statement most of them went to sleep prior to returning home and that only he and Tim, the victim, were awake. He then said that the expression, “most of them” would have been “me, Mario and Vlad”.

52 As far as Mr Miletic is concerned there is no issue of alcohol being a factor or that the vehicle was travelling at an excessive speed. However, the fact is that Mr Miletic knew that he was tired and so tired that he intended to plan to stop at the next roadside reviver station. Given what had been happening in the previous twenty-four hours, Mr Miletic’s tiredness is easily explicable. The fact is that after feeling tired and deciding that he ought to stop, he nonetheless drove approximately a further twenty kilometres before falling asleep at the wheel and losing control of the car.

53 It is quite clear that there is a legal distinction to be drawn between a manner of driving that is objectively dangerous to the public and a manner of driving that is without due care. However, that does not mean that if a person is found not guilty of the more serious charge that they must also be found not guilty of the lesser charge. The lesser charged implies a lesser degree of culpability in the manner of driving but one that is nonetheless reprehensible, albeit not to the same degree.

54 In Kroon’s case King CJ said at p 19:

“There must be very few cases in which a normal healthy person falls asleep at the wheel of a vehicle without any prior warning. Such warning may come in a number of ways. There will be cases in which the driver ought to be aware of the risk by reason of the length of time during which he has driven without rest, the conditions under which he has driven, the atmosphere in the cabin or his state of health. There will be cases in which he has direct warning from experiencing drowsiness. I should think that in almost every case the driver, before falling asleep, has a sensation of drowsiness at least to the brief period of time necessary to warn him to stop the vehicle. The cases must be rare in which a driver who falls asleep can be exonerated from driving without due care at least in the moments preceding sleep.

The more difficult issue in this class of case is whether the driving prior to sleep amounts to the indictable crime. The critical issue is the degree of the accused person’s departure from the standard expected of an ordinary prudent driver. The period of time during which the accused experienced drowsiness, whether proved by direct evidence or inferred from the behaviour of the vehicle or other factors, will be important. So will be the degree of departure from prudent standards involved in the continuing to drive for a prolonged period without rest or in spite of conditions in the cabin or poor health.”

55 In the same case, White J, said at p 25:

“Should a reasonable person in the situation of the appellant driver have been aware at about 10.30pm that night, shortly before the collision, that he was becoming tired or drowsy in consequence of which there was a risk that he might drop off to sleep. That was the question for the jury. The degree of the known tiredness and the nature of any warnings of the propensity to go to sleep in the circumstances would both bear upon the answer to the question whether the driving was dangerous or merely without due care.”

56 Towards the end of his judgment, White J said:

“Juries are to be trusted with drawing inferences from all of the known circumstances. They can be trusted to take into account all of the proved circumstances in deciding whether continuing to drive is no more than a lesser departure from the standard expected of an ordinary prudent driver on the one hand or a grave departure amounting to driving in a manner dangerous on the other.”

57 Reference has been made to McBride v the Queen 1966-67 40 ALJR 57. That was a case that did not involve the driver falling asleep but Barwick CJ, with whom the rest of the Court agreed in substance, had some comment to make upon the distinction between driving in a manner dangerous to the public and negligent driving or mere negligence. Referring to the indictable offence, his Honour at p 59 said:

“This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of the vehicle upon the highway so serious as to be, in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty, however grave, to a particular person having a significance only if damage is caused thereby.”

58 Later in that judgment his Honour said:

“Because the charge is unlikely to be laid unless the impact has caused death or grievous bodily harm, there will always be before the jury the serious result of the occurrence and the temptation to try an issue of negligence as between the driver and the injured party will naturally be most marked.”

59 He went on to say:

“But where it is the manner of driving, an expression which can cover a wide and diverse set of facts, it is not enough that the vehicle as driven by the accused death or injury and the accused was negligent even in some glaring respect. It is essential to define what is charged as the manner of driving so that when that has been found, the two succeeding questions can be dealt with, namely what was that manner of driving in itself or in its circumstances dangerous to the public and did the impact which caused the death or injury occur whilst the vehicle was being so driven.”

60 In Jiminez case the majority judgment said at p 579:

“For the driving to be dangerous for the purposes of s 51A there must be some feature which is identified, not as a want of care but which subjects the public to some risk over and above that ordinarily associated with the driving of a motor vehicle, including driving by persons who may, on occasions, drive with less than due care and attention.”

61 Further on that page their Honours said:

“It should be emphasised and it must always be brought to the attention of the jury that the condition of a driver must amount to something other than a lack of a due care.”

62 Finally, at the bottom of p 579 and over on p 580 their Honours said:

“It follows that for a driver to be guilty of driving in a manner dangerous to the public because of his tired or drowsy condition that condition must be such that as a matter of objective fact his driving in that condition is a danger to the public. Various matters will be relevant in reaching such a conclusion. The period of the driving, the lighting conditions, including whether it was night or day and the heating or ventilation of the vehicle are all relevant considerations. And of course it will be necessary to consider how tired the driver was, if there was a warning as to onset of sleep that may be some evidence of the degree of his tiredness and the period of driving before the accident and the amount of sleep that he had earlier would also bear on the degree of his tiredness. But so far as driving in a manner dangerous is concerned, the issue is not whether there was or was not a warning of the onset of sleep, but whether the driver was so tired that in the circumstances his driving was a danger to the public. The various matters which bear on that question and the way in which they bear on it should be carefully drawn to the attention of the jury.”

63 Having regard to those matters, it is clear that the jury found, on the evidence before it, which is the same evidence that I have before me, that whatever Mr Miletic’s manner of driving was it did not constitute driving that the jury felt was in a manner that was a danger to the public. However, that does not mean that he was therefore also not driving with less than due care and attention, which would enliven an offence of negligent driving. In that regard I cannot agree with the submissions of Mr Pappas for the defendant that if the defendant was not driving in a manner dangerous to the public, in the particular circumstances of this case, he cannot sensibly be said to have been driving negligently and the backup charge should be dismissed.

64 Mr Miletic was driving a vehicle that was not his. Over the previous twenty-four hours he had not had what might be regarded as a normal pattern of sleep and rest. His two companions in the car were asleep. The car had no high beam so he was driving slower than usual because of concerns as to hitting cattle or kangaroos. He was on an unfamiliar road in the early hours of the morning, having driven some hours prior to the accident. He had passed some driver reviver stop areas. The window was up and the radio was on, although the heater was not. About fifteen minutes before the accident and approximately twenty kilometres back down the road he had yawned once or twice and was feeling tired and he knew he was going to be tired. He said to himself that he was so tired that the next time he yawned he was going to pull over. There was no pressure on him to keep going because he was the only person awake so that he could have pulled over at any time. This was a rural road and there appears, from the photographic evidence, to be no shortage of places where a driver could pull off the road and stop. In continuing to drive in those circumstances, when he actually did fall asleep, could it be said that Mr Miletic was so tired that objectively he was driving carelessly or without due caution.

65 This is not a civil case where the standard of proof is the balance of probabilities. Here the Crown must prove the carelessness or lack of due caution beyond reasonable doubt. As King CJ said in Kroon, the cases must be rare in which a driver who falls asleep can be exonerated from driving without due care, at least in the moments preceding sleep. This is not one of those rare cases. Having regard to the authorities and having regard to the evidence from Mr Miletic as to his tiredness and his knowledge of that state and the other matters that I have referred to in the preceding paragraph, I am satisfied that the Crown has established beyond reasonable doubt that, at the time of this accident, Mr Miletic was driving negligently and that his driving was at least a contributing cause of Timothy Paine’s death. In those circumstances I find that the offence has been proved.

66 SENTENCE

67 HIS HONOUR: There is no doubt this is a very sad case on all sides. I think we tend to become a bit inured to the tragedies that daily occur on Australian roads. I read somewhere that as a result of motor vehicle accidents more Australians have been killed or injured on our roads than have been killed or injured in warfare, which is a pretty horrifying statistic.

68 I am certainly appreciative of the fact that when a death occurs in a motor vehicle accident or any accident for that matter, the effects on the surviving family are usually severe because there is no opportunity to prepare for what is the ultimate human catastrophe. At a stroke, a person who is part of their life is gone forever, without any opportunity to say goodbye or resolve any issues that may have existed and that situation has been reflected in the victim impact statements that have been tendered and read by Timothy’s brother on behalf of himself, his mother and his sister.

69 I found the offence proved and I was asked to deal with the matter by way of a s10 dismissal either directly or by way of a bond. I indicated at the time that I did not think that that was appropriate. Section 10 says that the Court has to take into account, in dealing with someone under the section, a number of matters. They are a person’s character, antecedents, age, health and mental condition, the trivial nature of the offence, the extenuating circumstances in which the offence was committed or any other matter the Court thinks proper to consider. The Crown argued against a dismissal, pointing to the prevalence of this offence and the need for general deterrence.

70 I have heard from Mr Miletic and I can certainly appreciate the difficulties he faces. One of the things that I have regrettably often had to say to people who I am sentencing to a term of imprisonment where they have been convicted of the more serious offence, which is not the case here, (and they are usually people of good character, in employment, and often they have families with young children), that whilst prison may be an incredible burden for them, their time in prison will come to an end and they will be released back into society and their families. Whereas, of course, the person who has died or been seriously injured will never be either restored to their family or restored, quite often, to good health.

71 This is a serious offence. It could not be described as an offence of a trivial nature. I have indicated the reasons why I found the offence proved. I agree with the Crown that it is, regrettably, a prevalent offence. Young drivers and relatively deserted country roads, for all sorts of reasons, seem to lead to disaster all too frequently. There is no suggestion in this case, as I have indicated, that Mr Miletic was speeding. There is no suggestion that he had been drinking alcohol or was affected by anything like that. I can sympathise with is plight at the time. There he was, his friend was not able to drive. It was his friend’s car. Everyone decided that instead of staying down at Batemans Bay, they would head off back to Canberra at a late hour on Saturday night. He felt tired and he made an error of judgment in not reacting to that and pulling up and having a rest.

72 Indeed, the vehicle that he was driving was his friend’s vehicle. His friend was not wearing a seatbelt. It is impossible to say whether or not that had any contributing effect to Timothy’s death. There has been no evidence on that issue one way or the other. Certainly when I looked at the photographs of the accident scene again and the car itself, the damage to the passenger side of the car was quite extensive.

73 I agree that there has to be a fairly significant element of general deterrence in this sort of matter, much the same as there needs to be the general deterrence for other fairly common driving offences such as driving under the influence. As far as driving with the high range prescribed concentration of alcohol the Court of Criminal Appeal has felt it necessary to indicate how that particular offence should be approached, such that there has to be some fairly extraordinary circumstances where a conviction and penalty should not be imposed.

74 There is no suggestion, as I said and as the Crown conceded, that this is a case where I should be even considering a term of imprisonment. Mr Miletic has been through a trial at Queanbeyan of this matter. That is a consideration that I can take into account. The result of that trial was he was acquitted of the more serious offence. He has been convicted though of the less serious offence and, as was pointed out by Mr Pappas in the authorities that he referred to, obviously the legislation takes account of the fact that there are degrees of poor driving that if proved will involve penalties, lesser penalties when the degree of poor driving is less and more substantial penalties when the driving is more serious. In that regard driving in a manner dangerous causing death or grievous bodily harm, has resulted in a guideline judgment that virtually requires the person to be sent to prison. This is not such a matter at this point of time.

75 I have taken into account his age. He is only a young man. He is twenty-four. He has a job. I accept that he has no prior matters on his record in New South Wales or in the ACT and for a person of his age, that is quite commendable because again, it is the experience of myself and others, that many young men who get to age twenty-four will quite often have a lot of more or less serious matters on their driving record.

76 In deciding what the penalty should be, I am governed by, as far as the disqualification is concerned, the provisions of the legislation which provide for a minimum disqualification period of twelve months or an automatic period of three years or a longer period if the Court thinks that that is appropriate.

77 I do not think imposing a monetary penalty in this matter would be appropriate, having regard to the circumstances. I do not see there is any necessity for a lengthy period of disqualification and I think that there is obviously no need for any intervention by any organisation such as the Probation and Parole Service, although I would urge upon Mr Miletic to continue the counselling that he is obviously having through his local priest.

78 The orders I make are as follows. That he is convicted. He is ordered to enter a bond under s 9 of the Crimes (Sentencing Procedure) Act to be of good behaviour for three years from today and he is disqualified for a period of twelve months to date from today. What that means Mr Miletic is you have got to be of good behaviour for a period of three years and you cannot drive for twelve months. I do not know whether you have got a New South Wales licence but if you do, you should surrender that now. If you have got an ACT licence you will eventually be notified, by whoever it is down there, that this disqualification has come into place down there. Providing you do not commit any further offences and I am quite sure you are not going to do that, that will be the end of the matter and once you have completed your period of disqualification you will be able to resume whatever driving you feel that you want to resume.