R v Ryan

[2000] NSWSC 724

CITATION:	REGINA v RYAN [2000] NSWSC 724
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 70003/99
HEARING DATE(S):	3/03/2000, 13,03/2000,14/03/2000, 15/03/2000, 16/03/2000, 17/03/2000, 20/03/2000, 21/03/2000,22/03/2000, 23/03/2000, 24/03/2000,27/03/2000,28/03/2000,29/03/2000,30/03/2000, 31/03/2000, 03/04/2000, 10/04/2000, 19/05/2000, 14/07/2000
JUDGMENT DATE:	14 July 2000
PARTIES :	Regina v Michael James Ryan
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr W Dawe QC (Crown) Mr P Skinner (Accused)
SOLICITORS:	T A Murphy (Crown) S E O'Connor (DPP) (Accused)
CATCHWORDS:	Manslaughter - sentence - semi-trailer driver - unwitting amphetamine intoxication - relevance
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v Previtera (1997) 94 A Crim R 76 at 85 R v Jurisic (1998) 45 NSWLR 209 esp at 231
DECISION:	See paragraphs 31 and 32

Transcript revised
THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

ADAMS J

FRIDAY 14 JULY 2000

070003/99

REGINA v MICHAEL JAMES RYAN

SENTENCE

1    HIS HONOUR: On 14 March 2000 an indictment was presented against the offender charging him with the murders of Arthur Hwee Siew Wong and Susan Mary Barnes on 18 September 1998 at Strathfield in the State of New South Wales. He was charged in the alternative with driving a motor vehicle dangerously whilst his ability to drive was substantially impaired by being under the influence of a drug and occasioning the death of those two persons. He pleaded not guilty to the charges of murder but guilty to the alternative charges. The Crown did not accept the pleas of guilty in full discharge of the indictment and, accordingly, the offender was put on his trial for murder. On 3 April 2000 the jury, being unable to agree on a verdict, was discharged and the offender remanded in custody pending a fresh trial. On 10 April 2000 the Crown preferred charges of manslaughter in respect of the deaths of Mr Wong and Mrs Barnes to which the offender pleaded guilty. 2    It is unnecessary for present purposes to set out in detail the evidence of the trial. However a brief summary of the material facts is required. Each of the deceased persons was the driver of a motor vehicle moving north in Centenary Drive when it was struck by the semi-trailer then being driven by the offender on the wrong side of the road in a northerly direction. Centenary Drive is a six-lane highway with three lanes going in each direction divided by a median strip a little over a metre wide. A number of witnesses were called as to the speed and course of travel on the road taken by the offender's truck at the material time. The effect of this evidence is that the truck was travelling north in Centenary Drive and was driven across the median strip and was on the wrong side of the highway for about 500 metres, when it struck the two vehicles being driven by the deceased persons, almost immediately thereafter swerving right and coming to a halt, jammed against the side wall of the roadway. It is clear that the offender had not lost control of the truck but intentionally drove it across the median strip and into the path of oncoming vehicles, most of which took successful evasive action. At the time of the accident the offender was severely affected by methamphetamine. In order to place these events in context it is necessary to go back a little. 3    On the Sunday before the accident, the offender had left his home in Victoria to go north via Melbourne. He had been driving the previous week and had rested on the day before although, he said, that as he set out again he was still tired. The offender passed through Sydney arriving in Brisbane on Tuesday 15 September. From there he went to Gympie to collect a load to bring back to Sydney. The offender arrived back in Sydney shortly before 2pm on Wednesday 16 September. 4    The requirements relating to driving, as applicable to the offender, were that in any 24-hour period he could drive only for twelve hours. He was permitted six consecutive driving periods of twelve hours in any seven days or twelve such periods in any fourteen days. Continuous driving of more than five hours required at least two fifteen minute breaks or a thirty minute break at the conclusion of that five hours. It is clear that the offender did not comply with these requirements and that he falsified his log book entries to pretend that he had. 5    The offender arrived at the premises of Valspar (Australia) Corporation Pty Limited (Valspar) at Glendenning, a suburb of Sydney, at about 4.45pm on 16 September 1998 to pick up a load of paint drums to be transported to Hastings in Victoria. Twelve pallets of paint drums were loaded. The offender told Valspar's employee, Mr Dolbell, that he expected to arrive at Hastings at about lunchtime the next day and that he would have to fuel up and sleep before he got too far “down the track”. Mr Dolbell said that the offender appeared to know what he was doing, was clean in his appearance and well dressed, alert and in a happy mood. He was able easily to remove the steel gates on the side of the semi-trailer and replace them, pull the curtain backwards and forwards, tie the load down and strap the curtain. The offender had a short rest in the cab of the truck before leaving Valspar and then drove overnight to Melbourne, deposited two loads, had a short rest and some sleep after doing so. The offender picked up another load at Dandenong around 3pm, eventually leaving Melbourne at about 9.30pm. He slept only another hour or so on the journey to Sydney which he reached on the morning on Friday 18 September. At about 8am he was involved in a slight rear end collision in western Sydney. Although in some ways the offender's reaction to this accident was exaggerated and he was unusually upset by it, there is nothing about his behaviour, as such, to indicate that he was unfit to drive at this time. The driver of the motor struck by the offender's truck described his eyes as glazed but in the circumstances I do not regard this as a significant description. 6    After the accident, the offender drove to Parsons Transport depot at Revesby, arriving there about 9pm or so. He rested his head on the steering wheel, possibly falling asleep for a little bit. Mr Colin Worth, who was the Sydney representative of Parsons Transport, the offender's employer, did not notice anything wrong with the offender although he spent some time in his company on this occasion. Mr Worth informed the offender that rather than go to Brisbane as originally planned, he was to pick up a load from Valspar and Daltons Packaging (Daltons) for delivery in Melbourne on Monday. The offender told him that this was good because he could have a night off and do some washing, having run out of clean clothes. The offender said in his evidence, that he had been taking methamphetamine over the week. It was in a powdered form and he took what he described as "a small amount at the end of a spoon" to stir into his coffee. 7    The offender arrived at Valspar about midday. He said that he was feeling both exhausted and sleepy. As I have mentioned, the last time the offender had slept was for about an hour on the afternoon of the previous day. He was now, I think, in what Dr Perl described as the withdrawal stage of taking amphetamines and his fatigue was beginning to set in. From Dr Perl's evidence to which I will later refer, I think it likely that the offender's fatigue was substantial at this time and that such effective functioning as he had earlier shown was the result of the stimulant effect of the amphetamines. Mr Dolbell said that the offender was uncoordinated and much slower than he had been two days before. He seemed very tired, he had difficulty ending his sentences, his eyes were glazed and bloodshot and his clothes were dirty. Mr Dolbell said that the offender had difficulty handling the gates on the trailer, that he kept stopping and resting his head against the trailer before performing each task and stumbled and dragged his feet, walking very slowly. It is obvious that the offender was close to the end of his tether. There can be no doubt that he was aware of this also. Be that as it may, after taking on his load, he left Valspar en route for Daltons. He stopped on the way at a takeaway store. He said that he drank a bottle of water and relaxed because he was feeling dizzy "like I was going to pass out". He thought that it is possible that he fell asleep for some time but he was unsure about this. 8    At 3pm, the offender rang Mr Worth to say that he was about to load at Daltons. A forklift driver employed by Daltons, Mr Gerrity, gave evidence about loading the offender's truck on this occasion. He said that the offender was acting strangely: he mumbled as he walked around, with his head down, sometimes shaking his head; the items were loaded unevenly; he was slow and unable even to throw the restraining ropes over the load after three or perhaps more attempts; his eyes were bloodshot and his clothes were dirty. The offender had telephoned his wife at about 3.30pm, probably when he first arrived at Daltons. Amongst other things, he told her that he was tired, he sounded upset and agitated and said he had been dismissed because of the accident that had occurred earlier that morning. This was obviously an over reaction. When his wife attempted to reason with him he hung up. The offender rang back at about 5pm and raised the accident once more saying, in effect, that he had lost his job over it. Again, he hung up on his wife. She rang him back. There was a brief exchange and Mrs Ryan hung up. 9    Although the evidence is uncertain about this, it seems likely that the loading at Daltons was finished by about 5pm. At about 5.30pm the offender telephoned a Ms Cox, whom he had known for some little time and with whom he had often spoken on the phone. Their telephone conversation was very lengthy, indeed, the records shown that it went for 73 minutes. Amongst other things, the offender told Ms Cox that he was tired, that he had been interstate without sufficient rest, that he was dirty and needed to sleep. He told her that he had hit the back of a car because he was tired and nodded off. This was a reference, I think, to the accident at 8 o'clock in the morning. Despite his tiredness, the offender told Ms Cox that, if he had time, he would come to a club where Ms Cox and her friends had planned a dinner, and meet them. Ms Cox was sure that, at this time, the offender was driving his truck, since she could hear the traffic and the sound of the truck moving. He said that he intended to go to a hotel at Colyton, get a room and clean up and would come up to the club after dinner. 10    Having regard to the evidence of the witnesses who saw him at Valspar and Daltons, I am satisfied that the offender could only have had a conversation of this kind, when nothing unusual was noted by Ms Cox, and think that he would be able to go on to a celebration after a clean up and a meal, if he had taken some methamphetamine to overcome his physical exhaustion. At about 7.30pm or thereabouts, the offender telephoned his wife once more. She said he was agitated and talking fast. He said that he intended to leave her, in effect, because he had lost his employment. It was very shortly after this that the accident occurred. 11    After the accident, the offender stayed in the cabin of the truck until he was, in effect, taken out by rescue workers at the scene. He was uninjured. It seems likely from the evidence of witnesses of his behaviour before he was removed, that the offender was in the throes of amphetamine intoxication. I accept that he knew that he had collided with two oncoming vehicles when he was going at about 80 kilometres an hour. He knew that he had, at the least, caused very serious injuries, possibly deaths. One of the eye witnesses to the accident came up to him and told him to get out of the truck because he had killed two people, but the offender refused, shouting to him to get away. He seemed to think that the drums of chemical material that he had loaded from Valspar were dangerous. Certainly, it was highly flammable. He was described as appearing very agitated. He yelled to one witness who asked him for the dangerous goods' paperwork, "Fuck off. Fuck everybody else off. I've killed enough fucking people as it is at the moment...it's going to fuckin' blow". This kind of thing was repeated a number of times. The offender said that he wanted to stay where he was, adding on a number of occasions, "It's going to blow". 12    I am of the view that, at this time, the offender was aware that he was responsible for the deaths of two people and that he had intense feelings of guilt and, perhaps, despair, which were considerably intensified by the methamphetamine intoxication. I think it is likely that, in fact, he did want to die. When the offender was removed from the cabin, he was restrained onto a stretcher and taken to hospital. As he was being transported in the ambulance, he was at sometimes coherent and at other times incoherent and babbling. Constable John Bamford, who attended at the scene and went to the hospital, following the ambulance, made a note shortly after of statements by the offender when Dr Dwyer began to examine him. His evidence was that the offender said -

"I have had it with everyone so I crossed over the road. You should have seen them. They were flashing the lights, blowing their horns, they were scared. The first one I hit he bounced off, but the other two I got them. I lined them up right. I killed them. I know I did and I am glad. I wanted to and now I have. I gave her everything she had."

A short time later the offender said -

"I need my night bag, it's got my stuff in it, don't let the police have it. They will steal my stuff."

This was said before he was given any sedatives.

During some of this time the offender was struggling and Bamford, with others, "were all pretty much occupied in just trying to keep him on the bed and stopping him from trying to get up". Amongst other personal items, the police found a small packet of methamphetamines in the offender's bag.

13    Dr Dwyer, who was the admitting doctor in the hospital emergency department, also gave evidence from notes he made shortly after the offender's admission. Although this oversimplifies somewhat Dr Dwyer's account, the following is sufficient for present purposes -

"The first thing I asked him what his name was and he did not answer. Then I asked him whether he had taken any drugs and he said: "I'm a truck driver, mate, I've got the flu", which led me to think that he was inferring he may have taken some medication.
“Within the next few minutes and before he received any normal sedation of any sort, he had a number of things he said: "Go and treat the others, I killed them, don't worry about me." He said: "I did it on purpose, I saw them coming and ran them down", and he said: "I'm criminally insane."
“At that particular time I asked him whether he'd ever had a diagnosis of mental illness or whether he had ever seen a psychiatrist, but I did not receive any answers at that point in time. They are the only direct quotes I have recorded here.

“Q. Did you tell him what you wanted to examine him?
A. Yes, I did.

“Q. And can you recall what response you received when you told him you wanted to examine him?
A. He said: ‘Don't untie my legs, I can't control them’. But other than that he had no objections."

These words were spoken in what the doctor described as a moderately loud and anxious voice. The offender was given sedatives and, although he made some later remarks, I do not think that any reliance should be placed upon them.

It is necessary to say something about the effects of methamphetamine. In this respect, the Crown called Dr Judith Perl, who is a highly qualified pharmacologist, and has been a consultant to the New South Wales Police Service since 1984. She said that methamphetmine is a central nervous system stimulant which alters perceptions and judgment and increases aggressive or risk-taking behaviour during the acute phase of intoxication. For obvious reasons, therefore, this drug is very dangerous when it has been taken by a person who is driving a motor vehicle. Although the drug may induce hallucinations, there was no evidence here that the offender suffered from an hallucination. The offender's blood was found to have a concentration of .09 mg/L, a very small quantity of methamphetamine. A very small quantity of amphetamine was also identified, less than .02 mg/L, almost certainly a metabolyte of the methamphetamine he had taken. Although Dr Perl thought that, at the time of the accident, the offender was, at least, in the stimulation phase of methamphetamine toxicity. She was asked -

"Q. Would amphetamine in the blood at the levels you saw, or could they, lead someone to be unaware of the side of the road they were on, in a case where there were three lanes going in one direction, three lanes going in the other, divided by a median strip of concrete perhaps a metre wide?
A. It is not generally an effect of amphetamines. I mean, it could occur for other reasons, not generally as a result of amphetamines. With amphetamines there is a level of clear consciousness.

“Q. So, what you seem to be saying is that, as it were, he is aware of the geography?
A. Yes.
“Q. But his attitude to what he is doing and, as it were, to that geography is altered by the amphetamine, in particular, he is excitable, aggressive and exhibits characteristics of that kind?
A. Yes, that's correct, the risk taking behaviour and the over reaction to a situation is increased significantly by the amphetamines, so a person may perceive some sort of slight against them and they will react in a more aggressive manner than they might.
“Q. So, this is not so much a disinhibiting effect as one that exaggerates?
A. Their reactions."

14    Dr Perl thought, having regard to the offender's behaviour (briefly described above), the concentration of methamphetamine found in his blood sample, was surprisingly low. This suggested that the offender may not have been a regular user of amphetamines and thus had a greater susceptibility to its stimulant effect with a lower dose. She thought that, having regard to the quantity of drug in his blood, the offender had taken the drug six to eight hours and possibly even less a period before the accident. 15    Dr Perl said that she would not have expected any memory impairment due to the methamphetamine that the offender ingested. Whilst the drug can produce paranoia and hallucinations, there is no evidence of any such symptoms and I am satisfied that the offender did not suffer them. Having regard to the concentration of methamphetamine in the offender's blood, Dr Perl expected that there would be an increased alertness without any severe impairment of recollection, although he was obviously agitated. It is not necessary for me to express a final opinion upon this point, but there was evidence which probably established that the offender, at least by the time he got to the hospital, was suffering from amphetamine toxicity. His statements in the hospital must be considered in this light. 16    The Crown also called Dr Wong, who is a very experienced psychiatrist, to give evidence concerning the offender's likely mental state at the time of the accident and thereafter at the hospital, when he made the statements about his driving which I have mentioned. The doctor's view, which I accept, was that the offender was not suffering from delusions or hallucinations at any material time and that he was capable of making reliable and accurate statements and appreciating the natural and probable consequences of his acts. Whether he did so, of course, is another matter. 17    The offender's evidence was that he recalled leaving the parking area at Daltons but not anything else about the journey until immediately before he collided with the two cars being driven by the deceased. He said that he remembered "being on the wrong side of the road is what I figured it out to be and just very quickly there was just cars to the left of my bonnet and to the right of my bonnet and all of a sudden this mighty crash". He remembered someone on the bonnet of the truck yelling at him and someone else at the window and swearing at them and telling them to go away. He said that he did not recall the police or the ambulance officers, coming out of the cabin of the truck and going to the ambulance, the trip to the hospital or being examined. Indeed, he had no further recollection of events until about midday on the Sunday following the accident. However, there was evidence from Dr Madden who was, at the time of the accident, the psychiatric registrar at Concord Hospital that he interviewed the offender on the early afternoon of Saturday 19 September 1998, namely, the day after the accident, and concluded that he was orientated, alert, able to maintain and focus attention and answer questions in an appropriate and logical manner. Except for saying that he had no memory of the events of the previous night, there were no other signs of any abnormal mental state. The doctor thought that the offender was mildly sedated probably as a result of the medication given him in the hospital the night before, but there was no evidence to suggest that he was intoxicated with amphetamines, though he may have been suffering mildly from sleep deprivation and possibly methamphetamine withdrawal. Dr Wong's opinion was, in substance, that the methamphetamine ingested by the offender had not affected his memories adversely. However, he added, in effect, that the sedatives given to the offender after his admission to hospital, if they had any effect, would affect mostly the events that transpired thereafter and that the effect on his memory of events prior to the administration of the medicine would have been insignificant. 18    I am sceptical of the truthfulness of the offender's evidence that he did not remember events at the hospital, and I do not accept that he cannot recall his consultation with Dr Madden. More importantly, I do not accept that he had no memory of the events leading to the collisions either when he spoke to the police or Dr Wong or, for that matter, when he gave evidence in this Court. There may be a number of explanations for this untruthful denial of any memory of how he came to be on the wrong side of the highway. The most reasonable inference available is, I think, that he simply is unwilling to articulate a memory of events which had such catastrophic consequences and for which he knows he was responsible. The extent of his feelings of guilt may be judged from his insistence that he wished to stay in the cabin of the truck despite what I accept to be his genuine fear that it was about to explode from the ignition of its cargo. Whilst he was then probably in a state of amphetamine induced intoxication, this did not render these expressions any less likely to have been sincere. I consider that, indeed, they reflected his then state of mind. 19    That the offender was at times babbling and incoherent and exhibited other symptoms suggestive of amphetamine intoxication is relevant to assessing the reliability of his statements in the hospital. In my opinion, there was a significant element of exaggeration in the offender's language caused not only by the intoxicating and disinhibiting effects of amphetamine intoxication, but also by his emotional reaction to the appalling events which he had precipitated. I therefore conclude that, when making the statements about the accident, the offender was not accurately describing his state of mind at the time of the collisions. It is at least reasonably possible that his statements in the hospital, themselves probably exaggerated, were a reconstruction warped by the intensity of his emotions resulting from the amphetamine intoxication combined, I rather think, with profound feelings of guilt. 20    Although the offender's then state of mind was affected by methamphetamine, there can be no doubt that he intentionally drove across the median strip into the traffic which he saw coming towards him, which any reasonable person must have known would be extremely dangerous to life and limb. Since the offender is convicted of manslaughter and not murder, however the circumstances might be understood, he cannot be punished for any intention to kill or cause grievous bodily harm or being recklessly indifferent to human life. The measure of the offender's culpability, for present purposes, is that provided by the elements of the crime of manslaughter by an unlawful and dangerous act. I cannot punish him for a crime of which he has not been convicted. I must punish him for the crime to which he has pleaded guilty. I am persuaded beyond reasonable doubt that the offender adverted to the possibility, but perhaps not to the probability, of his actions causing serious injury and, because of his intoxicated state induced unwittingly by methamphetamine, intentionally drove across the median strip and into the path of oncoming cars. Neither the facts nor the law permit me to go any further. 21    Another difficulty with assessing the level of culpability for the purposes of sentencing the offender derives from the circumstances in which he took the methamphetamine. Almost every case of dangerous driving whilst affected by a drug involves an offender who has intentionally taken the drug for the purpose of experiencing the pleasurable effects of altered consciousness. Moreover, when they drive, such offenders are aware of their euphoric and disorientated state and thus that it is dangerous to drive, although the drug usually also disinhibits them from concern about the dangers. This behaviour is obviously criminally culpable. However, in this case, the offender, who was clearly unable to drive safely given his exhaustion and fatigue, took the drug, I am satisfied, in order to enable him to drive some relatively short distance to a place where he might rest. I am also satisfied that, were it not for the methamphetamine, the offender would not have driven as he did. Furthermore, it seems to me to be obvious that, when he took the methamphetamine, he did not expect and had no reason to think that he would suffer from any intoxication, let alone that he might intentionally drive into oncoming traffic. He had taken it before and there was no suggestion that he had experienced any ill effects. He was a worker on his way home, not a drunk out on a spree. 22    This is not a case where an intoxicated driver lost control of his motor vehicle because of distorting effects on his or her perceptions and reflexes but, rather, extreme aggression brought about by the ingestion of a drug probably known to be unsafe or at least unpredictable in a general way, but which was not intended to cause any altered state of consciousness except that of overcoming fatigue. The offender's culpability is significantly reduced but not, for the reasons I shall shortly mention, by very much, by the fact that his intoxication, unlike that of the person who drinks alcohol or who takes drugs for euphoric effect, was not intentional. 23    I consider that the offender did not appreciate and had no reason to think that it was as dangerous to take the methamphetamine as proved to be the case, or that it might have the effects on his psyche which caused him to cross the median strip. At the same time, the offender was not some kind of automaton acting entirely under the influence of the drug. Certainly, it caused a significant increase in aggression and risk-taking behaviour and it is fair to say that, but for his intoxication, he would not have driven as he did. As affected as he was, however, the decision to drive into oncoming traffic was nevertheless made by the offender knowing that it was dangerous, however much that recklessness was caused by the drug. 24    When the offender came to pick up the load from Valspar, as I have mentioned, he was completely unfit to drive any vehicle, let alone a semi-trailer, and his doing so created, as he well knew, considerable risk of injury to other persons using the road. In this sense, his reckless behaviour preceded his taking the methamphetamine. However, he took the drug to restore alertness and energy, in short, the ability to drive properly. Even so, I have no doubt that the offender knew that his capacity to drive safely may well be affected by a combination of his fatigue and the drug, although he disregarded this risk, in the mistaken opinion that he would be able to manage safely enough to drive the twenty kilometres or so to that night's destination. His judgment was probably distorted by his extreme tiredness, but this is to underline the dangerousness of his behaviour. The offender knew that to drive his heavy vehicle at conventional speeds in traffic whilst able to function only because he had taken a roughly measured quantity of stimulant which induced artificial wakefulness was dangerous, even though he had no way of foreseeing the appalling manner in which that danger ultimately manifested itself. As a result of this recklessness, two persons lost their lives. 25    The offender admitted falsifying his log book in order to conceal his failure to comply with the obligatory rest requirements which applied to his schedule. For some hours before this accident he had been driving in a state of exhaustion which he knew must have been dangerous of itself. His taking of the methamphetamine, therefore, was not an isolated act of unlawful behaviour, but part of an extended period of reckless folly which, had he given the matter any thought, he would have appreciated was capable of catastrophic consequences at almost every point. 26    For these reasons, I do not think the fact that the offender did not take the drug for its euphoric, as distinct from stimulant, properties lessens substantially the objective gravity of the offence in the circumstances of this case. Nor does it lessen the need to impose an appropriately deterrent sentence, not so much to deter this offender, as other drivers who might be tempted to use drugs to overcome fatigue. 27    The offender was born in 1971 and hence was aged twenty-seven at the time of the accident. The only material matters noted on the offender's record, were that he was fined for disobeying traffic lights in 1989 and negligent driving in 1990, they seem to have been dealt with by the issue of a notice. I think I should disregard them for present purposes. The offender had been working as a truck driver for some years before taking up employment with Parsons Transport with which he had been working for about five weeks before the accident. He was a reliable and hard working employee who was well regarded by his employers. As at the date of the accident he had been married for about three and a half years. They have no children. I am satisfied that the offender is remorseful for what he has done, quite apart from what follows from his plea of guilty. That plea, of itself, does not indicate any contrition as it was, I think, recognition of the inevitable. Even so, he is entitled to some recognition in terms of his sentence, as a consequence of his plea, which in the circumstances was given at the first opportunity. It is also consistent with the remorse which, as I have mentioned, I am satisfied he feels. 28    Victim Impact Statements have been tendered on behalf of the families of the two persons who were killed, Susan Mary Barnes and Arthur Hwee Siew Wong. Both these statements give expression to the intense grief and great suffering which has resulted from their deaths. As time goes by, the intensity of these feelings will hopefully soften but each anniversary, each family gathering, will be, of itself, a reminder of the missing loved one. I offer the Court's consolation to both these families conscious, nevertheless, that their pain and anger and anguish will remain with them for many years. 29    In permitting Victim Impact Statements to be received in a hearing such as this, however, the law does not thereby place them to be weighed in the scales of judgment. I respectfully agree with and adopt the careful reasoning of the Chief Judge at Common Law in R v Previtera (1997) A Crim R 76 at 85 ff as to why this must be so. The loss of a life is the gravest injury know to the criminal law. Accordingly, it is not made any more serious because the victim's death is the cause of pain or grief to others. It would seriously undermine the moral standards essential to the rule of law to suggest that justice could regard the life of one person as more or less valuable than the life of another or, to put it in another way, the killing of one person as more grievous than the killing of another, because of their personal and social circumstances. All right-thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for an offence which resulted in death because the deceased was obnoxious, stupid, friendless or alone. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was loving and loved and surrounded by friends and family. If this were not so, counsel for an offender whose actions caused a death might rationally submit that, as the deceased was of the former character, the sentence should be more lenient and the Crown prosecutor, by referring to a grieving family, submit to the contrary. The virtues or vices of the deceased, the extent of his or her social connections and whether the death caused grief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument. The law will neither value a life nor punish a death by such a demeaning process. 30 In considering the appropriate sentence in this case, I have noted the guidelines set out in R v Jurisic (1998) 45 NSWLR 209 esp at 231. Of course, that case dealt with offences under s 52A of the Crimes Act 1900. Usually, manslaughter, when caused by dangerous driving is a more serious crime. Certainly the applicable maximum penalty is considerably higher. 31 Having regard to the circumstances that both offences arose out of the same course of driving, the sentences will be concurrent. Even so, the period of the sentence must reflect the totality of criminality and thus take into account that there were two deaths and thus two offences of manslaughter committed, not one. I do not consider that special circumstances exist. The offender has been in custody since 27 March 2000 and therefore both sentences will commence on that date. I have been informed, however, that before he was taken into custody on that occasion he spent forty-eight days in custody on remand before being granted bail. I have therefore reduced by two months the sentences which otherwise I would have imposed. 32 Michael James Ryan, for each offence comprising the manslaughter of Arthur Hwee Kiew Wong and Susan Mary Barnes, you are sentenced to a term of seven years ten months imprisonment with a non-parole period of five years and ten months. The earliest date upon which you will be eligible to parole is 26 January 2006.

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Last Modified: 09/26/2000