R v Moodie

[2019] NSWDC 822

District Court

New South Wales

Medium Neutral Citation:	R v Moodie [2019] NSWDC 822
Hearing dates:	14 October 2019
Decision date:	17 October 2019
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Convicted. Special circumstances found – first period in custody, need for a longer period on parole to assist the offender with reintegration into the community. Sentenced to a term of imprisonment for 4 years and 9 months comprising a NPP of 3 years to commence on 17/10/19 and to expire on 16/10/22 and a balance of term of 1 year and 9 months commencing on 17/10/22 and expiring on 16/7/24. Disqualification from holding a licence for 5 years, pursuant to s206B requesting that the RMS take into account the period between 17/3/17 and 17/10/19 SEQ 3: Dismissed pursuant to s10A SEQ 2: Withdrawn and dismissed
Catchwords:	CRIMINAL – Sentence - dangerous driving occasioning death – utility of plea “largely squandered” – amphetamine & methylamphetamine – ‘momentary distraction” - straight, flat road – Victim Impact Statements of deceased’s family – subjective matters
Legislation Cited:	Crimes Act 1900
Category:	Sentence
Parties:	Regina Moodie, Sean
Representation:	Counsel: Mr T Bailey Mr D Brogan   Solicitors:
File Number(s):	2017/00071794

Judgment

1. Sean Moodie appears for sentence in respect of an offence of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act. The maximum penalty provided by the legislation is ten years’ imprisonment and there is no relevant standard non-parole period.

2. In addition, there is a further offence contained on a s 166 certificate, being drive with illicit substances in blood. The maximum penalty for that offence, it being a first offence, is a financial penalty of 20 penalty units only.

3. The offender was committed for trial on 8 November 2017 from the Deniliquin Local Court and the matter was listed for trial on 15 October 2018. The trial date was vacated on the application of the defence and relisted for trial on 11 March 2019. On that day, the first day of trial, a plea of guilty was entered.

4. The offender, having entered a plea of guilty, is entitled to a discount for the utility of the plea. In my view, taking into account a vacated trial and the period of time between the committals for trial in November of 2017 to the plea being entered in March of 2019, the utility of the plea had been largely squandered as the matter had to be prepared on at least two occasions.

5. In my view it is, however, still appropriate to provide some discount for the utility of the plea and I will provide a discount of 5%.

6. The facts are agreed and are as follows.

7. On Wednesday 14 September 2016, the offender arrived at a property called Wilmington. At 9pm he was due to pick up cattle and transport them to Tongala in Victoria. At the time he was driving a prime mover with two transport trailers attached. The cattle were not ready to be transported until the following day, with the offender departing Wilmington at 9.30pm on 15 September 2016 and travelling to Yanta, arriving at 11.30pm, taking a flexible half an hour break. He then continued to Wentworth arriving at 5am on Friday 16 September 2016 and stayed for an hour.

8. At 6am he continued to Tongala, arriving at 9.30am and unloading the cattle.

9. The offender then recommenced travel at 2pm on 16 September 2016, departing from Tongala, arriving through Echuca and north along the Cobb Highway towards Deniliquin.

10. On Friday 16 September 2016, the now deceased, Frederick Hanson, attended the Deniliquin RMS Centre and obtained an unregistered vehicle permit to enable him to drive his tractor from his farming property to a local agricultural swap meet which was being held in Deniliquin. The conditions of the permit were:

1. To only drive the tractor from his place of residence to the swap meet and return.

2. To travel only in daylight hours.

3. Not to exceed 45 kilometres per hour.

11. The deceased left his place of residence, Telko, on Wallaceton Road, Deniliquin, around 2pm and travelled north along the Cobb Highway in his tractor.

12. At approximately 3.10pm on 16 September 2016, the tractor driven by the deceased and the road train driven by the offender were both travelling north along the Cobb Highway, approximately 10 kilometres south of Deniliquin. It is accepted that the road train was travelling at no less than 90 kilometres per hour and no more than 100 kilometres per hour, and the tractor was travelling at less than 45 kilometres per hour.

13. As the road train approached the tractor, the offender failed to see the deceased travelling north on his tractor along the Cobb Highway until the final seconds and collided with the rear of the tractor. The force of the collision ejected Mr Hanson from the tractor and the tractor came to rest approximately 40 metres to the western side of the road in the grass.

14. The rear offside tyre of the tractor continued to travel through the paddock, coming to a stop approximately 200 metres from the collision site. The offender applied the brakes and jack-knifed the prime mover and both trailers, coming to rest approximately 60 metres from the collision site on the eastern side of the roadway.

15. The offender exited the prime mover and immediately went to the tractor to see if he could locate the driver. A number of other truck drivers had stopped at this point, and brought the offender back to the truck area.

16. Other witnesses located Mr Hanson in the grass and contacted Triple‑0. Police attended and started CPR on Mr Hanson. Other emergency services arrived and Mr Hanson was declared deceased.

17. The offender was conveyed to Deniliquin Hospital and a blood and urine test was conducted. The offender was requested to attend Deniliquin Police Station where he was entered into custody as a voluntary protected suspect. He was informed of his rights under the legislation and participated in an electronically recorded interview.

18. During the interview, the offender stated that two or three vehicles had overtaken him approximately 2 to 3 kilometres prior to the accident, and he could see in his mirrors that another vehicle was approaching from behind. When he glanced up again he only saw the tractor as he was hitting it. He did not have any time to brake prior to hitting the tractor as he had not seen it until he was upon it.

19. The offender commented that he was not sure if the tractor had just come out onto the roadway, and also mentioned that the colour of the tractor was similar to the colour of the dead grass on the side of the road which may have made it hard to see.

20. The offender denied talking on the phone at the time, and stated that he had not consumed any illegal substances or alcohol. He had just not seen the tractor.

21. While speaking to the offender police observed that his face and skin were pale and that he appeared talkative and anxious. His eyes, speech, balance and movement all appeared normal and police were unable to assess his sobriety. They were unable to determine if his appearance was due to tiredness and shock or illicit substances.

22. After the interview, the offender was conveyed to his brother’s house where he awaited his girlfriend. The offender’s logbook was seized and examined, with no abnormalities found. The offender’s phone and another phone, which was located in the cab of the prime mover, were seized and also forensically examined. Analysis of the mobile phone used by the offender and call records obtained by police indicates that the offender was not using his mobile phone immediately prior to the collision.

23. The blood sample taken from the offender was subsequently analysed and was found to contain 0.03 milligrams of the prohibited drug amphetamine and 0.13 milligrams of the prohibited drug methylamphetamine per litre of blood.

24. Amphetamine and methylamphetamine are commonly referred to as ‘speed’ and ‘ice’ respectively. Methylamphetamine is metabolised partially to amphetamine. The relative concentration of methylamphetamine to the amphetamine level in the offender’s blood indicates the amphetamine was likely to be due to metabolism of methylamphetamine. The blood level of methylamphetamine, and the presence of amphetamine, impaired his driving by intensifying his momentary distraction.

25. The road surface was well-maintained, with the area being flat and a relatively straight section of roadway. The road comprised single lanes separated by a broken white centreline and white fog lines. The sign-posted speed limit was 100 kilometres per hour.

26. Provided as part of Exhibit 1 is a series of photographs of the scene, a sketch plan of the Cobb Highway showing the point of collision and where the vehicles came to rest, and an aerial map of the collision site.

27. The photos of the collision scene include photographs of the victim’s tractor. Although in appearance it is somewhat rusty, it is of a relatively bright orange colour.

28. As demonstrated from the plan and the photographs, the road section where the accident occurred can be reasonably referred to as dead straight and dead flat. There is on each side of the road a dirt run-off before any vegetation. The vegetation is low growing grass. There were no trees or other impediments to the offender being able to have a clear view of a vehicle travelling directly in front of him for a considerable period of time before his vehicle, without braking, collided with the rear of the tractor with such force as to rip off the offside over-large tractor tyre and its hub from the tractor, so the tractor was no doubt pushed for some distance down the road before it speared off to the left.

29. The deceased was found at a point further along from where the tractor came to rest. The offender’s road train, after he applied the brakes, jack‑knifed and ran entirely off on the wrong side of the road and came to rest in part on the verge and the surrounding paddock.

30. It is extremely difficult to understand how the driver of a road train being positioned in the primary mover, which of course places him at a higher point than the driver of an ordinary car, on a dead straight, dead flat road, with nothing intervening, could not have seen the tractor until he hit it.

31. His explanation was that he was looking in his rear vision mirrors because he was aware of another vehicle behind, who he believed would in due course endeavour to pass his road train. If that was so he must have spent a considerable period of time staring in his rear vision mirrors rather than attending to the road in front of him, in my view. The offender’s blood samples demonstrated 0.13 milligrams of the prohibited drug methylamphetamine and 0.03 milligrams of the prohibited drug amphetamine. Amphetamines and methylamphetamine in particular have become a serious concern to the community. There is now no city, district, town or rural area in New South Wales which is not now plagued by the distribution of methylamphetamine, a drug that has potentially serious consequences for those who use it. It is well known to have serious adverse effects such as drug induced psychosis, and it is constantly appearing before the Courts in relation to matters of relatively random aggression and violence inflicted on members of the community by users of that substance.

32. One particular use is, as here, being used by the drivers of prime movers, semi-trailers, participants in the transport industry to overcome the adverse effects of long hours of work, driving long distances with inadequate rest or recuperation. It has, on many occasions, led to significant road accidents.

33. Any use by a truck driver of amphetamine or methylamphetamine runs the risk of significantly endangering other members of the public as well as themselves.

34. Before the Court are a number of reports from Dr Perl and Angela Sungaila, a forensic physician, relevant to the effects of amphetamines and/or methylamphetamines. I accept, as submitted by the Crown, that there is in effect no real dispute between the experts with the statement as contained in the facts that the blood level of methylamphetamine and the presence of amphetamine impaired the offender’s driving by intensifying his momentary distraction, although as indicated, I have some difficulty with the expression “momentary distraction”. In my view the distraction must have been more significant than momentary considering the road circumstances and the view that I have previously referred to.

35. I note that the offender on one occasion has described the problem as perhaps being because the tractor came out on the road immediately before he hit it or that the colour of the tractor blended in with the vegetation. Having viewed the photographs and the sketch plan I reject that as being even a remote possibility. The tractor did not suddenly appear from nowhere. Its colour was distinctive and it could not have been hidden off to the side of the road by vegetation, there being no relevant vegetation to hide it.

36. A number of statements have been made to the Court by the deceased’s relatives. They are from his mother, Audrey Hanson, Audrey Martin, the deceased’s sister, Douglas Martin, a nephew of the deceased, and Brian Martin.

37. It is clear that the deceased came from a very close and loving family, which he was a very significant part of. He provided daily support for his aged mother by way of attending each day to check on her wellbeing and to include her in the management of the property. She is now some 90 years of age and has been deprived of the benefit of her son’s loving attention which would no doubt have continued for the balance of her life.

38. The death of Mr Hanson has also had a significant impact on his sister and other relatives, as was eloquently stated to the Court by them in their Victim Impact Statements. This matter is clearly a significant tragedy for that family and has had significant consequences not only in respect of emotional trauma but in respect of displacing financial and investment arrangements that had been made in 2015. The impact on the family and those individuals in the circumstances will be permanent. However, as tragic as it is, it is no more than the anticipated consequences of offending such as this.

39. As to the objective seriousness of the offence, I accept the submission made by the Crown, and not contested by Mr Brogan on behalf of the offender, that it falls above the midrange of objective seriousness. I accept that it does not fall at the highest range of objective seriousness but certainly above the midrange.

40. As to subjective matters, before the Court is the offender’s criminal history. The offender is now approximately 39 years of age. His criminal history is limited, there being one offence in 2006 of behaving in an offensive manner in or near a public school or place, which was dismissed pursuant to s 10. It is irrelevant to the current sentencing process.

41. Of some relevance is an offence in 2013 of supplying a prohibited drug, in relation to which, on 17 June 2014, he received an Intensive Correction Order of nine months. There is no information before the Court as to what the prohibited drug was, but I note that it would accord with the period of time when, as I understand it, he was already engaged in the work of a truck driver.

42. In addition there is a Sentencing Assessment Report under the hand of Graeme Banks, dated 24 April 2019, and a letter from Dr Walton, being a psychiatrist, dated 23 April 2019, tendered on behalf of the offender.

43. The subjective matters are taken from that material.

44. For the first ten years of the offender’s life, he lived in Bacchus Marsh, Victoria, before his grandmother purchased a property some 28 kilometres from Deniliquin, and the family moved there. The farm was sold in 2010. The offender’s father died some two years ago as a result of complications from bowel cancer at the age of 61. His mother is 60 and she lives in Wodonga. He is one of four siblings, having one older brother and two younger siblings.

45. His family is described as being reasonably close and he maintains contact with them.

46. He has been involved in a de facto relationship for the past five years and has apparently now become engaged. As a result of that relationship, he has a nine year old de facto stepson and there is a four year old son and an 18 month old daughter of the union.

47. He completed Year 10 by the age of 15 before beginning to work on the family farm, which was triggered by his grandfather having undergone a hip replacement. He worked as a farmhand for approximately five years before then establishing his own business as an owner-driver carting livestock.

48. Since the accident, he has found work as a builder through an uncle based in Geelong, and since October last year he has been assisting a friend who established a truck repair business in Swan Hill. In order to work there, he journeys there for a fortnight at a time before returning to the family home in Wodonga.

49. He had no psychiatric history or mental illness difficulties prior to the accident, but he is described as having suffered from anxiety and depression since, with intense nightmares and sleep disturbance, and having become hyper alert and hyper vigilant when travelling in vehicles, and it is said that he ruminates about the accident frequently. He is otherwise described as being of normal intelligence.

50. Dr Walton opined that he was currently suffering from post-traumatic stress disorder, and also provided in his report is some information about the appellant’s use of stimulants. The report contains the following:

“Mr Moodie has only abused stimulant drugs as far as illicit drugs use is concerned, and not for social or recreational ends, but as a truck driver to overcome tiredness. Perhaps over a period of four years, until he turned 36 years old, he would drink speed, his use being around three and a half grams every two or three weeks. He then moderated his use of such stimulants, and prior to the index accident he had not used any of that drug for some eight months previously.”

51. As a result of his anxiety and depression since the accident he has been prescribed Zoloft to assist him.

52. I note that Dr Walton inappropriately describes the offender’s history of intermittent stimulant abuse as “what might be described as an occupational hazard for long-distance truck drivers.” It is only an occupational hazard for those who elect to indulge in it, as did this offender.

53. Currently living in Wodonga with his partner and the children, he has a relatively consistent employment history in farming and trucking.

54. To the sentence assessment officer he acknowledged the serious nature of the offence, and maintained that he did not see the other vehicle until the moment of impact.

55. It is apparent from the facts that he did not see it until the moment of impact, but in my view it is extremely difficult to accept that it was some “momentary distraction”, impaired by the presence of methylamphetamine and amphetamine.

56. He informed the presentence officer that he had been drinking a bottle of water that may have had traces of methylamphetamine mixed in it, conceding his history of such use to Dr Walton.

57. I am of the view that the offender was being less than frank in suggesting that he had been drinking a bottle of water that may have had traces of methylamphetamine mixed in it, with emphasis on the word “may”.

58. It has been urged upon me by Mr Brogan, on behalf of the offender, that I should find remorse and contrition on the basis of the offender’s plea of guilty. As I have indicated to Mr Brogan, a plea of guilty does not necessarily reflect remorse or contrition. It may, but in the circumstances where the plea of guilty itself is so belated, and in the face of what was an overwhelming Crown case, which the offender must have appreciated from shortly after the time of the accident, I am unable to find that the plea of guilty in itself reflects remorse or contrition.

51. Mr Brogan also urged on me that I should accept the content of Dr Walton’s report in that regard. I note that the sole reference to remorse or contrition in Dr Walton’s report is as follows, on p 6: “Mr Moodie expressed straightforward remorse.” The rest of the report is all about the effects of methylamphetamine/amphetamine or the consequential effects of the offence to the offender.

52. Dr Walton does not say in any way how the remorse was expressed in some “straightforward” fashion. I anticipate that a psychiatrist would at least understand the concepts of remorse or contrition, but I am unable to assess for myself on the basis of his report whether the remorse or contrition expressed to him was genuine or significant.

53. However, fortunately for the offender, the presentence report contains the following under “Insight into Impact of Offending”:

“Mr Moodie appeared to display a good level of insight into the impact his actions have had on others. Mr Moodie stated that he felt awful about the situation and it had affected him daily. He reported the victim and his family are constantly in his thoughts when he wakes up and prior to going to sleep.”

62. I am prepared to accept on that basis, and on the basis that Dr Walton indicates that the effect on the offender has been to give rise to a diagnosis of post-traumatic stress disorder, that the offender is indeed genuinely remorseful and contrite in relation to his offending.

63. I note he was assessed by the presentence officer as a low risk of reoffending. Considering his age and criminal history and the nature of the offence, I accept that he is a low risk of reoffending and that there is a good prospect of rehabilitation, particularly if he can manage to cease using stimulants at all, whether driving or not.

64. Truck drivers and those affected by stimulants are a serious risk to road users. There is a strong need for the sentence in relation to this matter to provide general deterrence to truck drivers who would imperil the public by driving, particularly while affected to any degree by stimulants. But I am also of the view that it is appropriate to take into account specific deterrence in relation to this particular offender.

65. Clearly, a matter such as this, leading to the death of Mr Hanson, who might have expected to live for a good many more years in the comfort of his family, is a significant matter. Offences such as this call out for sentences of imprisonment, and no submission has been made in this matter that it can be dealt with otherwise than by a period of imprisonment. Such implicit acceptance was entirely appropriate.

66. I have taken into account all of the matters that I have referred to, including the discount I previously mentioned at the commencement of these reasons.

67. Mr Moodie, would you please stand?

68. You are convicted in relation to each of the two offences. I take the view that the offence of drive with an illicit substance in your blood can be effectively taken into account by the sentence to be imposed in relation to the dangerous driving occasioning death offence. Accordingly, I will simply deal with it pursuant to s 10A, that is, a conviction is to be recorded with no further penalty.

69. As to the offence of dangerous driving occasioning death, you are sentenced to a non-parole period of three years with a balance of term of one year and nine months, that is, a total sentence of four years and nine months with a non‑parole period of three years.

70. The sentence is to commence today, 17 October 2019. You will be eligible for parole on 16 October 2022. Whether you are released on that date or not will depend on your assessment by the prison authorities at that time.

71. I have found special circumstances to reduce the statutory relationship between the non-parole period and the balance of term on the basis that it is your first time in custody,, and because, as I perceive it, you will need a longer time on parole than would otherwise be provided in order to assist you in reintegrating into the community.

Yes thank you, you can sit down.

Now, is there anything else, gentlemen?

BAILEY: No, your Honour, thank you.

BROGAN: Nothing, thank you.

HIS HONOUR: All right, I’ll adjourn.

SHORT ADJOURNMENT

HIS HONOUR: Yes Mr Crown.

BAILEY: It was my oversight, your Honour, Ms McFarland reminded me that there’s some licence disqualification that must attend conviction in this offence.

HIS HONOUR: I tried to find the provision in relation to disqualification. What is the provision? I couldn’t find it.

BAILEY: Yes. It’s categorised as a major offence under the Road Transport Act 2013.

HIS HONOUR: Yes, well I found that section, but it seemed to be a major offence under the Road Transport Act rather than the Crimes Act.

BAILEY: Yes. That’s the confusing part, that’s one of the reasons - it’s 205(2)(d).

HIS HONOUR: All right, and what does that say Mr Crown?

BAILEY: It says - (d)(i). “Where the conviction...in the order.” So it’s an automatic disqualification for three years.

HIS HONOUR: Which applies in the absence of an order, and - I had given it consideration Mr Crown but I frankly couldn’t find the relevant section.

BAILEY: I see.

HIS HONOUR: I will accordingly disqualify Mr Moodie from holding a licence for a period of three years.

BAILEY: Thank you, your Honour, and as I understand that takes effect on the day of his release.

HIS HONOUR: Yes, it does. All right.

BROGAN: I’m being urged to put the submission that s 206(b) says that he is entitled to have taken into account any disqualification that he has already - the suspension that he is already - disqualification or suspension that has already occurred.

HIS HONOUR: He had his licence taken off him--

BROGAN: He was suspended on 7 March 2017, 4.15pm. Perhaps I should tender the notice of suspension. If I could hand that up so your Honour can see it rather than tender it--

HIS HONOUR: Yes, thank you.

BROGAN: --with the qualification that I don’t know what happened in the Local Court to see whether that suspension was sought to be overturned, but I’m instructed that as far as we know there was no such application.

HIS HONOUR: Well, Mr Brogan, I had in mind before I failed to find the section that a period of five years would be appropriate, but I hadn’t taken into account the need for any period of suspension to take into account the period that he’d already been suspended.

BROGAN: Yes.

HIS HONOUR: So it may be that the appropriate thing to do is to rescind the order I just made and make an order for five years’ disqualification, but that disqualification is to take into account the period of suspension from 17 March 2017 until today.

BAILEY: I understand, your Honour.

HIS HONOUR: And I think that effectively - well that’s at least - just over two and a half years already accounted for, all right?

BAILEY: I understand, thank you, yes.

BROGAN: Thank you, your Honour.

HIS HONOUR: All right, thank you. And if there’s any problem in relation to that, Mr Crown, Mr Brogan, you can bring it back before me while I’m here on circuit. Normally I quote the section that that comes under, it’s s 226 isn’t it?

BROGAN: 206--

BAILEY: 206(b) your Honour.

HIS HONOUR: Thank you.

**********

Decision last updated: 25 February 2020