R v Thomas Kerr

[2015] NSWDC 237

District Court

New South Wales

Medium Neutral Citation:	R v Thomas Kerr [2015] NSWDC 237
Hearing dates:	20 – 21 August 2015
Date of orders:	21 August 2015
Decision date:	21 August 2015
Jurisdiction:	Criminal
Before:	Knox SC DCJ
Decision:	Sentenced to an aggregate term of imprisonment of 27 months with a non-parole period of 18 months
Catchwords:	CRIMINAL LAW – sentence – (x4) dangerous driving occasioning grievous bodily harm – (x3) causing bodily harm by misconduct – unsworn oral statement of regret by offender untested – driver’s awareness as to the circumstances around him – inadequate lookout – need for adjustment of speed depending on circumstances on the road – conjecture of blackout rejected in absence of medical evidence – absence of explanation as to cause of collision an unknown fact – imprisonment for driving offences – assessment of gradations of moral culpability – more than momentary inattentiveness – no exceptional circumstances justifying suspension of sentence – partial accumulation where seven victims
Legislation Cited:	Crimes Act 1900 (NSW) ss 52A(3)(c) and 53
Cases Cited:	R v Jurisic (1998) 45 NSWLR 209 R v Whyte (2002) 55 NSWLR 252; (2002) 134 A Crim R 53; [2002] NSWCCA 343 R v Khatter [2000] NSWCCA 32 R v Howland (1999) 104 A Crim R 273 Regina v Foster (2001) 33 MVR 565 The Queen v Kyle [2014] NSWCCA 30 R v Dutton [2005] NSWCCA 248 Gonzalez v The Queen [2006] NSWCCA 4 Pearce v The Queen (1998) 194 CLR 610
Category:	Sentence
Parties:	Regina – Crown  Thomas Kerr – Accused
Representation:	Counsel: Mr Sean Hughes (Crown) Mr Murugan Thangaraj SC (Defence)   Solicitors: ODPP (NSW) KM Legal (Defence)
File Number(s):	2014/167867
Publication restriction:	None

Judgment

Charges

1. Mr Hughes appears for the Crown on instructions from the DPP and Mr Thangaraj of Senior Counsel instructed by KM Legal for the offender.

2. Thomas Kerr has pleaded guilty to seven counts on indictment namely, firstly, four counts of dangerous driving occasioning grievous bodily harm pursuant to s 52A(3)(c) of the Crimes Act 1900 NSW. The maximum penalty for an offence of this nature under this section is seven years imprisonment. The victims named in each of those four identical counts are Paul Haber, Anthony Anderson, Hans Dean and Gillian Anderson.

3. The offender also pleaded guilty to three counts of causing bodily harm by misconduct pursuant to s 53 of the Crimes Act 1900 NSW. The maximum penalty for an offence under this section is two years imprisonment. The victims named in each of those three identical counts are Gus De Souza, Bharat Mistry and Bryce Dean.

4. There is also a charge listed on a s 166 certificate, namely a negligent driving charge, and I will return to the Crown at the conclusion of these remarks to ask what application is made in relation to that certificate.

Facts

5. A brief outline of the facts is that on 16 March 2014 between 8.30am and 8.35am Mr Kerr was driving his black Nissan X-Trail SUV motor vehicle on Southern Cross Drive near Eastlakes. He was driving in a northerly direction on lane 1. The precise location of the section of Southern Cross Drive is set out in the agreed facts and the photographs which accompany those agreed facts.

6. Ahead of him were a group of at least seven cyclists travelling in columns in the same direction. They had been driving in what was referred to as a peloton formation whereby one group would overtake another group in the course of their journey and that group would then in turn be overtaken.

7. The offender collided with members of the group and significant injuries were caused to a number of them. They were taken by ambulance to St Vincent’s Hospital as well as to St George Hospital for treatment. The seventh rider was able to ride his bike from the scene.

8. Mr Kerr was arrested at the scene of the collision, his blood and urine were analysed and returned a negative reading to the presence of alcohol. He was alone in the vehicle at the time of impact. He was subsequently charged and interviewed. He said that he remembered driving around the corner of Southern Cross Drive into the area preceding where the collision took place. That was his last recollection of the events until after the collision.

9. He heard a loud thump and recalls noticing a cyclist protruding from under the bottom of the car. He then slammed on the brakes.

10. In terms of conditions, at the time of the collision the weather was warm and clear, visibility was good, the surface of the road was dry. The road was also in good condition and free of any obstacles. It is unclear to me whether there was any sun streaming into the eyes of the offender at that time although I note that the incident occurred at about 8.30am. The road was bituminised and in good condition and free of any obstacles.

11. Photographs have been tendered of the scene of the collision, and photographs were also tendered of the damaged bikes at the scene. Many of them were extensively damaged.

12. All seven cyclists involved belonged to the Eastern Suburbs Cycling Club. All were experienced riders and had a practice of cycling on public roads around the nearby area in groups of up to ten or 12.

13. At the time of the collision the cyclists had passed through the Southern Cross Drive airport tunnel and were heading along the road as part of what was generally anticipated to be a three hour trip. Their practice, as I have said, was to travel in columns or lines such that one column replaced the other from time to time. That was done deliberately in order to minimise traffic problems. These were cyclists who were aware of what they were doing and were acting lawfully and in accordance with safety requirements – and with regard to public safety.

14. The cycling route followed by them took up one lane towards the left hand side of that lane. They were travelling at approximately 32 kilometres per hour and were fitted with appropriate safety precautions. They were wearing distinctive, red, white and blue or generic cycling jerseys. They were all wearing helmets. There is no suggestion the group or any of them was responsible in any way for the collision.

15. The agreed facts also state that traffic at the time was at a moderate level which could be anticipated, as I say, given the time and date, namely, at or about 8.30am on a Sunday in March.

Witnesses

16. In terms of independent witnesses, an independent witness, Mr Stuart White, observed the offender’s vehicle in his rear vision mirror and described it as careering right through the middle group of cyclists – “like a tenpin ball through a set of skittles”. Mr White saw a couple of riders go over the top of the offender’s vehicle.

17. There is no doubting the severity of the collision. Mr White saw two cyclists go up and over the top of the vehicle, one on either side. There was a rider under the bottom of the vehicle who had been pushed forward and the bike remained underneath the front fender. Mr White saw Mr Kerr walking up and down the shoulder of the road looking shocked and distressed. He said “I didn’t see them I was just changing lanes, I didn’t see them at all.” Mr White’s observation was that he did not recall seeing the offender changing lanes.

18. Another independent witness, Mr John Umay, was also travelling in a northerly direction in lane 3 with his cruise control set at 80 kilometres per hour. He recalled that Mr Kerr’s vehicle was not travelling as fast as he was but that the vehicles were almost parallel with each other when impact occurred. I infer from that that the offender was travelling at slightly below the speed limit. Mr Umay said that the offender did not slow down and did nothing to go around the cyclists. There was no indicator being used. Mr Umay saw Mr Kerr put his brake lights on. After he had collided with the cyclists, he seemed to start veering towards the second lane but not in a sudden motion. It was a slight veering before he collided with the cyclists. Mr Umay also stated that the offender was always in lane 1 and that he had “ample time to move across the lanes into it, he just didn’t do it.”

19. Another witness, Mr Colin Vickers, was travelling behind the offender’s vehicle. He said that he saw bikes and the four-wheel drive just did not move, it did not stop, it was going straight into the back of all the bikes so the bikes were going to the left as he was veering to the right. He saw that the offender’s vehicle ploughed into the back of them and slightly off centre.

20. A passenger in Mr Vicker’s car, Mr Christian Vickers, also said that he saw a black four-wheel drive going “a bit fast, a little bit erratic ... the car kind of went straight into them at full speed ... which resulted in him kind of going to the right, there was no braking, nothing, just straight into them.”

21. A further independent witness, Mr Pen Martin, appears to have observed the events after the collision in particular in relation to what the offender said and I will come to that later in these remarks.

Explanations for the accident

22. In terms of any other explanation, a subsequent forensic examination of the vehicle concluded that there was no mechanical defect or failure with the vehicle that might have been a contributing factor towards the collision occurring. As I have said, there is no suggestion that any of the cyclists were in any way responsible for the accident.

23. Mr Kerr’s immediate response after the collision involved him stopping and walking over to one of the cyclists and saying “I don’t know what happened I looked up and all of a sudden I started clipping you guys.”

24. Mr Kerr later told his father that he was at a loss as to what had happened and was totally bewildered that he had run into a group of cyclists. He was unable to rationally explain what had happened.

Injuries

25. It is clear that the victims on counts 1 to 4 have already suffered substantial harm. This is an element of the offence, and is not to be used in an aggravating sense. The same comment should be made in relation to the victims on the remaining, less serious but still important, counts.

Victim Impact Statements

26. Victim impact statements have been received from Dr Paul Haber, Gillian McDonald, Hans Dean and Bryce Dean. In relation to all the victim impact statements tendered, the approach to be followed is as is set out in the Act. I have clarified with the Crown and it appears that none of those who have made those statements have any objection to those matters being read. That was done given my concerns about the personal details of some of the impact of the accident on them and on their lives, their families and their financial affairs.

27. I would ask the media to respect that privacy in relation to that aspect.

28. What is clear is that the relevant elements of grievous bodily harm have been made out, as well as the causing of bodily harm and the circumstances do not go beyond that purpose.

29. For the purpose of these remarks, it is important to canvass those victim impact statements in accordance with the provisions of the Act and take them into account as I do.

Paul Haber

30. Dr Haber’s injuries are set out in the agreed facts which will be redacted and distributed. He has also provided a victim impact statement dated 1 March 2015. It is an extensive statement which I have corroborated with other aspects of the agreed facts. Suffice it to say he has had major health effects. He has undergone major spinal surgery on the day of the crash, to stabilise his spine and to prevent paraplegia. There was an unstable burst fracture of his second lumbar vertebrae, a lesser fracture of the other vertebrae and that necessitated a fusion of his entire lumbar spine. This involved and necessitated a lengthy and extremely painful recovery period in terms of his regaining his ability to walk and becoming increasingly mobile. He had a second operation in October to remove the hardware implanted in the first procedure.

31. Set out over the course of the next ten paragraphs is a series of both understandable and totally reasonable concerns that he and his family have had in terms of his future health and the impact of those spinal injuries on him. He was 55 at the time of the injury and has suffered not just an impact on the immediate physical, mental and medical concerns, but on his lifestyle, such as difficulties in resuming cycling.

32. That latter impact has been the case for all the victims in the circumstances, which can be expected. This was a hobby, an activity pursued by all of them as an appropriate, proper and laudable activity. It is devastating to them that they have had loss of this particular activity in the circumstances which occurred with absolutely no responsibility being attributed to them in any way. Dr Haber has also had property and financial losses. The impact on his private practice has been substantial. That at one stage led to the closure of his practice, with an impact on his income and his own interactions with new and existing patients. Also set out in that statement is his loss of work, the consequential difficulties for his family, the emotional strain on this family, the impact on him, and the work that he and his wife had been doing in a charitable area. It has had, as I say, a devastating impact on him.

Anthony Anderson

33. Anthony Anderson’s victim impact statement his statement is referred to in paras 26 and 27 of the agreed facts. He was 67 at the time of the accident. He was knocked unconscious, he received abrasions, rib fractures, a deformed nose, a nasal bone fracture with a deviation, a condylar fracture, clavicular fractures, multiple rib fractures and burst fractures to L1. He required immediate surgery and pins above his vertebrae.

Hans Dean

34. Hans Dean, 48 years old, was knocked unconscious. He had an occipital haematoma, altered sensations to his legs, abrasions to his hand, face, elbow and knees. He also had a burst fracture with a retro-pulse bony fragment. That required immediate surgical correction and the insertion of metal rods and screws on either side of his vertebrae. On any view, he too has suffered ongoing problems. I have re-read the victim impact statement which he has provided, particularly under the headings of ‘physical injuries’, the ‘emotional impact on his wellbeing’ and the ‘mental health impact’. The statement sets out the changes to his behaviour and attitude and the impact on his financial situation, his housing situation, and his employment. He did at that stage employ 10 office staff and 40 plus contractors around the country. That business has been significantly affected financially. He is back at work now but in a 40% capacity. The accident has had a direct impact on his private finances and the quality of his family’s life. He has had difficulties with insurance coverage and again, all those matters are entirely understandable and attributable directly to this accident.

Gillian Anderson

35. Gillian Anderson’s victim impact statement refers to the impact on her as well as on Mr Anthony Anderson, her partner. She deposes to the details in the statement dated 19 August 2015. Her major injury was to her right arm which involved complex partial de-gloving, lacerations and a tearing of her ulna nerve. She had surgery the day after the injury to close some of the wounds on her arm and on her leg. There has been some growth to the nerve but it has been very difficult to her in ways which again are understandable, and without going into those details or impinging on her right to privacy, she has had extensive treatment which was necessary. The consequences of the accident have taken a great deal of time out of her life and has had a major impact on her, her partner, her family and on her lifestyle. She says it has taken her almost a year to feel comfortable to ride a bike again and only riding in Centennial Park.

Bryce Dean

36. There is another statement by Mr Bryce Dean I have re-read a certificate from the completing doctors in terms of the impact on his nasal break, the right elbow, the grazes, and also the impact on his lifestyle which has been extensive. It is probably unnecessary to go through all of the relevant matters in detail.

Gus De Souza and Bharat Mistry

37. I have examined all of the remaining statements and comments concerning Mr Desousa, and Mr Mistry.

38. On any view, this was a devastating collision with consequences which were both far-reaching and ongoing and in some cases permanent. They are significant injuries and consequences and they must be reflected in a sentence which reflects the objects of sentencing.

Offender’s personal circumstances

39. Mr Kerr’s personal circumstances are that he is aged 28, he is the youngest of three sons. He grew up in the southern suburbs of Sydney where he was educated. He is single and lives with his parents. He received what can only be described as supportive parenting and an upbringing in which he was able to excel in various areas including rugby league. After completing his secondary education he has held various positions and now works in the sports wagering and gaming industry. At one stage he ran his own fitness centre called Charge Forward Fitness which he did for some three to five years. That is a tribute to his initiative and work values.

Prior convictions

40. However, what stands out and which cannot be ignored is that he has had a prior criminal conviction for affray, apparently resulting initially in a sentence of periodic detention. That was set aside on appeal and replaced with a community service order which he completed, it seems, apparently satisfactorily. He had an additional conviction for aggravated robbery in 2012 for which he was subject to a two year intensive correction order which commenced in May 2013 and which was obviously still in force at the time of this incident.

41. Defence counsel submitted from the bar table that the circumstances of that offence was that it occurred after a funeral and some considerable drinking by him with others. Whatever the circumstances – and it clearly did not relate to driving – it was something that was serious. However, given that it was an aggravated robbery charge and there was an intensive correction order imposed, it would presumably not have been at the upper end of what was the common range of sentences in relation to aggravated robbery matters.

Driving record

42. What is a concern to me also is the offender’s driving record. He was disqualified from driving for two years in 2010. There was an associated charge of using a mobile phone for which he was fined. I interpolate to say that I have assumed that the police have made inquiries and that there is no suggestion of any mobile phone being used in this particular instance of this collision. He was also charged for driving whilst disqualified it seems also in 2010.

43. He had a conviction in 2009 for driving with a mid‑range PCA for which he was fined. He was sent a letter at that stage notifying him that he was being warned in relation to the actual offence under the habitual offender provisions.

44. Neither the criminal history nor the traffic record assist him in any way at all. While it cannot be used as an aggravating factor, it is of considerable concern. The view I take it that does indicate a continuing disregard of the legal provisions in relation to restrictions relating to road usage and the way that impacts on him.

45. On one view, and without knowing the full details of those offences, he was extended some considerable leniency in relation to the various sentencing options which were extended to him over that four to five year period preceding this particular collision.

Evidence on the sentencing proceedings

46. Mr Kerr did not give evidence. By consent and without opposition from the Crown, the offender read a prepared statement of remorse to the victims in open court. I permitted that because it seemed important to the victims to be able to hear that directly from Mr Kerr. Some of those victims were present others did not wish to be present.

46. There was a perception by some of the victims apparent in their statements that those expressions of remorse by Mr Kerr were absent until late in these proceedings. This may have arisen, according to Mr Kerr, from the advice given to him by previous legal representatives about pursuing that course. Whatever the situation was, that statement was made in the context of sentencing proceedings. It was made without the offender either giving sworn evidence or being available for cross-examination. It is therefore untested.

47. For what it is worth, in my view, the offender was genuine in his expressions of remorse which I have taken into account in terms of the discount which is appropriate given his plea of guilty. But in terms of its legal classification, it is akin to a letter being tendered from the offender. It is untested and I give it limited weight other than on the question of remorse particularly it does leave open the issue of what was the reason for the inattention that was given in the driving that occurred.

48. The end result is that this is a situation where because I give the oral statement limited weight other than questions of remorse, I am left with no adequate explanation here about the cause for this collision. The submissions, therefore, made on his behalf by Mr Thangaraj SC – that the only conclusion available is that the incident was the result of a lapse of concentration – remain as conjecture only.

49. I should also indicate that if that practice is to be followed in this court it should be borne in mind that dock statements have been abolished. The law is very clear as was specified recently by the High Court in terms of situations of untested evidence and what evidence a trial judge or a sentencing judge can have regard to in those circumstances.

50. Additional sworn evidence was given by the witnesses Mr Barry Kerr and Ms Linda Osborne. Mr Kerr is the offender’s father. He gave evidence at the sentencing proceedings that he believes his son is hard-working and has modest values. He still regularly visits his grandmother who has dementia and that is in his favour. He suffered from a knee injury while playing rugby league at a senior level. Mr Barry Kerr said that the offender’s knee injury was described by the doctors as being a very bad injury. He, the offender, struggled to get over it and the subsequent treatment and that was to his credit that he did so.

51. It was interesting and indeed appropriate for the offender to remark on the fact that he has had difficulties with such injuries and knows to some, albeit limited, extent what the victims have gone through. These victims have gone through considerable amounts in terms of the very serious medical issues that they have had directly following from this accident. They are in no way comparable to what Mr Kerr himself had.

52. Mr Barry Kerr said that he had a heart attack in 2007 and, in addition to this, he had some financial difficulties. He has had to sell his home and to alleviate the financial strain Mr Barry Kerr said his son, Thomas Kerr, and his two brothers assisted him financially. He, Thomas Kerr, gives his parents $300 each week. Mr Barry Kerr said that he visited the offender in hospital and said that at that time he was in shock However, notwithstanding that, his major concern was for the victims’ health and physical state. I accept that evidence. It was sworn evidence.

53. Mr Kerr’s father said that the offender was a good driver, an opinion which in my view is not consistent with Mr Thomas Kerr’s prior traffic and criminal record. When asked whether he was aware of the full statement of the offender’s driving record he said he was only aware of two of the convictions.

54. Ms Linda Osborne also gave evidence at the sentencing proceedings. She said she knew the offender through her daughter who had been in a relationship with the offender for some time. She said she trusted him completely including having him drive her daughter around on numerous occasions. She also said that the offender had travelled with her and the family on two separate occasions, once to Bali and another time to the USA. On that latter occasion she allowed him to drive her. She did not know of the detail of the offender’s driving record rather she said that when the offender and his brothers were out at night her understanding and experience of them was that if they were drinking that night then they would always catch a taxi home. When asked, she said she was aware of Mr Kerr’s prior conviction for mid‑range PCA. She said that she had heard of that offence through her daughter.

55. There does not seem to be an attempt to either mislead the Court in these references. However, they do minimise in my view a knowledge of the offender’s driving record which as I say does not assist him at all.

56. There were other references tendered to the offender’s character. His mother Shirley Kerr provided a statement which she detailed both her concerns, the impact on him and the family and, in particular, his ongoing anxiety. There are also references provided by Mr Rix and Mr Robert Osborne who said that he had always considered the offender as being a responsible driver. Mr Owsnett also gave his opinion that the offender was a responsible driver.

57. How all that sits with the offender’s driving record is unclear to me – particularly as to whether those witnesses were aware of that record. However, the references were otherwise generally confirmatory of the offender’s secure and stable upbringing, his family support and his support to them, his interests and his character. I will take those matters into account in relation to those aspects.

Medical report: offender

59. In terms of medical opinion as to what might have been the cause of the incident, a report was provided from a Dr Robert Bezic which set out firstly that he has been Mr Kerr’s general medical practitioner since 1993. He said that Mr Kerr was initially prescribed treatment for anxiety which caused “significant and sometimes disabling symptoms” up to around about the period of September 2011. That appears to have ceased by December 2011. Dr Bezic says that Mr Kerr’s anxiety disorder has improved significantly apart from the stresses associated with the sentencing proceedings; again, that is to be expected. Dr Bezic said that Mr Kerr did not suffer any significant side effects with the prescribed drug Lexapro and withdrew off the medication. There is no suggestion that the withdrawal caused any cognitive lapses or ongoing problems. There is also no suggestion of any medical cause for any inattention, lapse of judgment or lack of concentration at the relevant time.

Submissions

60. The Crown specified in submissions that there is no suggestion made by the Crown that the offender drove deliberately at the group of cyclists or any of them. There is no suggestion, and again I want to emphasise this, of any road rage, or the offender’s driving, or the collision arising out of, for example, frustration at not being able to overtake the cyclists.

61. The Crown reminded the Court that the offender was on an intensive correction order at the time of the offence. Although this was for an offence of affray – a different offence from that involved here – the Crown submitted that it is still of relevance in relation to the opportunities afforded to the offender and the sentencing options in particular. I think that is correct. The Crown further submitted that the offender’s speed should be considered in light of the circumstances. The Crown submitted that, if the offender was travelling at a speed of at or about 70 kilometres an hour, where the cyclists were travelling at 32 kilometres an hour that means he was travelling at about 40 kilometres an hour more than them. The Crown submitted that hat was unsafe in the circumstances where there was not an adequate lookout being maintained. The cyclists must have been visible that morning to a distance of at least 300 metres. It is clear that the distance would have taken about 17 seconds to complete or thereabouts. The Crown submitted that in those circumstances the sight of a group of that many cyclists must have been one that gave rise to vigilant caution on any driver’s part in these circumstances. Clearly there were other cars around on what is, on any view, a major road in Sydney carrying airport traffic as well as traffic from the southern suburbs of Sydney.

62. That much of those submissions is clearly correct. Even though the offender was travelling below the speed limit, a driver’s speed must be considered by any responsible driver in the light of the circumstances relevant at the time. Here those circumstances included the fact that there were cyclists travelling both appropriately, safely, and in the lane ahead of him at the time. He must have been aware of them for some considerable period of time, even if it was measured in seconds. Seventeen seconds is a long time for anybody driving on a straight road in clear conditions.

63. In response to the defence submissions that this was a case of momentary inattention, the Crown reiterated that the relevant driving was over a distance of 300 metres and a period of some 17 seconds. In those circumstances the Crown submitted, in my view appropriately, that this is in the context of driving and the breach could not be classified as either momentary or fleeting. The Crown did not concede that the offender had a blackout. In my view there is no evidence to support that finding. I have considered the medical evidence and his accounts to the police and other authorities both subsequently and contemporaneously. There is no relevant medical history that could conclude or enable a finding that such a blackout did occur. The precise cause for the incident and the collision remains an unknown fact.

64. The Crown conceded that on the evidence it was open for the Court to find special circumstances, which I propose to do for reasons I will subsequently outline, and a 25% discount to the sentence for the early plea would be appropriate and proper in these circumstances.

Defence submissions

65. Mr Thangaraj SC for the offender submitted that there should be a finding of low moral culpability as part of his overall submission that an appropriate sentence would be one of full time imprisonment to be carried out by way of an alternative such as an intensive correction order. Defence counsel points out that the offender pleaded guilty at an early occasion in the Local Court. I have tried to track down through the date when that occurred precisely, but I think it is classified appropriately as an early occasion.

66. Mr Thangaraj SC went on to submit that the plea and the continuation of it is indicative of the offender’s remorse and that that is reflected in the statement he made in open court to the victims. I agree with that submission. He submitted that specific deterrence is not a relevant consideration in this case given the personal circumstances. I disagree with that submission and I will indicate why in further remarks. Further to that he submitted that general deterrence should not loom large in the consideration of what is an appropriate penalty. I disagree with that submission also.

67. Mr Thangaraj SC submitted that the authorities for these kinds of offences do not indicate that a term of full time imprisonment is the only available sentence in the circumstances. Rather, he submitted that an intensive correction order or home detention or other alternative to full time imprisonment would appropriately and adequately meet the requirements of personal general deterrence. I disagree with that submission in this case for the reasons I will outline. He submitted that momentary inattention must have been almost at the point of impact because, if it was any earlier, it would not be possible that the car would have been driving in that manner in a straight line or, on some accounts, while slightly veering. In my view, in the absence of any evidence, that is a matter for conjecture. It is not necessary for me to accept the offender’s unsworn account in these circumstances and I do not propose to do so.

68. In response to the Crown’s submission that a sentence of full time imprisonment was appropriate, Mr Thangaraj SC reminds me that the terms of the guidelines in the cases of R v Jurisic (1998) 45 NSWLR 209 and R vWhyte (2002) 55 NSWLR 252; (2002) 134 A Crim R 53; [2002] NSWCCA 343. Specifically, he says that those two authorities do not contain any guideline cases involving momentary inattention in the absence of aggravating factors. He further submits that none of the aggravating factors that are relevant to moral culpability can be found in this case. I disagree with those submissions.

69. The precise terms of Whyte were per Chief Justice Spigelman at [214]:

“the guideline of this Court should give pursuant to s 37A of the Crimes (Sentencing Procedure) Act with respect to the typical case identified above is that a custodial sentence would usually be appropriate unless the offender has a low level of moral culpability as in the case of momentary inattention or misjudgement.”

70. Mr Thangaraj SC submitted that the test is not whether there was or was not inattention but the degree of inattention. The driving was deliberate only in the sense he submits that it was a voluntary act but not a deliberate act as far as the collision is concerned. He then submitted that the facts of this offence are to be treated differently in that, in this case, a momentary inattention, if that is what is found, does not equate to a breach in the traditional sense. He also reminded me that the offender was clearly driving within the speed limit. He then submitted that there are no other factors of criminality other than his inattention to the cyclists.

71. As I said, there is no rational explanation for the cause of the collision other than the offender’s driving. I do not regard this case as being one of momentary inattention. Defence counsel also submitted that while the plea has not been traversed, there is no “guilty intent” associated with the driving. Defence counsel further submitted that the character of the accused is indicated by the fact that he immediately went to look after the victims. He certainly went to talk to them and he was co-operative and, indeed, handed over his licence after the incident as is set out in the document marked exhibit 20. I note that that was done some ten days later on 26 March 2014, apparently on at least medical advice at that time. Defence counsel finally submitted that given the nature and extent of the injuries to the various victims, the Court should be careful not to conflate the criminality of the driving and the consequences of it, and I have been mindful of that consideration.

72. The decisions of Jurisic and Whyte make it clear that the moral culpability of the offender should be assessed against nine factors which I have considered. It seems to me that, firstly, the degree of speed relative to the circumstances and the driving conditions is relevant, as well as item number 5 of those guidelines, the length of the journey during which others were exposed to risk. Here the distance travelled was some 300 metres.

73. There are a number of other authorities which are necessary to be set out for the purpose of these reasons and in terms of my overall consideration. They include R v Khatter [2000] NSWCCA 32 where Justice Simpson said that,

“offences under s 52A are not divided into those of momentary inattention and the abandonment of responsibility. Those are the two extremes. There are shades and gradations of moral culpability in different instances of the offence and it is proper for the courts to recognise a continuum rather than a dichotomy when assessing moral culpability.”

74. That was the approach taken in the decision of R v Howland (1999) 104 A Crim R 273. That approach was also in line with that stated in Regina v Foster (2001) 33 MVR 565. There is, for example, inattention which falls between the momentary and that which could be described as an abandonment of responsibility, and I need to look at that spectrum or range given these circumstances. I have also considered and referred counsel to the decision of The Queen v Kyle [2014] NSWCCA 30 in the context of a sentence which should be imposed in cases concerning dangerous driving occasioning grievous bodily harm. In that decision the Court of Criminal Appeal held that a sentence of three years with a non-parole period of one year and nine months was manifestly inadequate for an offence of aggravated dangerous driving occasioning grievous bodily harm, and in that case that sentence did not reflect adequately the objective seriousness of the offender.

75. Mr Thangaraj SC seeks to distinguish that case on its facts from the present on the basis that there the offender was driving over a distance of some 53 kilometres as distinct from here where it was 300 metres. There was a substantial breathalyser reading, albeit in the context of likely heavy drinking on the previous evening, and the following morning the appellant in that case woke up with a reading of above 0.2. Further involved in this case was driving where the appellant crossed over into the pathway of oncoming traffic. There were also distinguishing features in terms of the injuries suffered to the victim in that instance compared those suffered by the victims here. I do agree that that case of Kyle is different from this case by virtue of the period of driving involved, the degree and extent of the inattention involved, as well as the fact that that case was also a charge of aggravated driving under s 52A(4), which is not the case here under 52A(3). However, I need to be mindful of the general comments made by the Court of Criminal Appeal in that instance.

General deterrence

76. The Court needs to make it abundantly clear that cyclists who obey the law – as all the victims here were doing – have just as much right and entitlement to use the roads without danger or fear of being subject to such a random act of dangerous driving or, in the second category of offences, being caused serious harm.

77. Drivers also need to be aware that they need to constantly pay attention to all traffic on the road and to be able to adjust their speed to take into account changing circumstances. Here those circumstances include the fact that there was a body of cyclists which were clearly visible on the road ahead of this offender. The sentence must mark the fact that this care was not present with the offender’s driving and indeed there was a significant breach of it. It was clearly dangerous. It was this inattention, the degree of it and the continuation of it, which was dangerous and which alone caused this accident.

Specific deterrence

78. In general terms the offender is, apart from his driving record, a person of good character. He has been the product of a secure and stable upbringing with a sound work ethic. His driving record and to a limited extent the criminal record, subject to the matters of the breathalyser conviction, is only relevant to determining where a sentence should lie within the boundaries set by the objective circumstances of the offences, as was set out in The Queen v McNaughton (2006) 163 A Crim R 381 and is not to determine the objective seriousness of the offence. His record is relevant, as I say, to matters of personal deterrence and general deterrence.

79. In my view, his record does indicate over the years prior to the commission of the offence a somewhat casual attitude towards the law and its applicability to him. It does not assist him at all, as I say, in the five years preceding this offence that were the matters that I have set out, and they are relatively serious transgressions where there have been a range of a series of non-custodial sentencing options extended to him. That leniency does not appear to have been recognised by him.

78. There is nothing in Dr Bezic’s report in terms of his anxiety which impacts on the inappropriateness of a full time custodial sentence. As was said in R vDutton [2005] NSWCCA 248 at [38], there is nothing to justify the exceptional step of suspending a sentence. The features that disadvantaged that offender were much more serious than is the case here.

79. I have considered the factors that I have specified and indeed the general remarks in both Jurisic and Whyte. What is clear here from the nature of the driving, which I have found to be clearly dangerous given the distance and the time involved and all the other circumstances as outlined, is that this is more than a case of momentary inattention. Whatever term is used, be it a continual or a range or a level, what is needed is an assessment of the moral culpability as set out by Spigelman CJ in Jurisic at [228]. I do regard here the moral culpability as being significant and not minor. In terms of what was said in Whyte at [214] I also find that the level of culpability is above a low level and I find that with reference to the two particular factors I have identified as was set out in Gonzalez v The Queen [2006] NSWCCA 4 at [13].

80. There were seven victims. They were spread out over an area of a major road. It was not, for example, a situation of a single cyclist with an obscured vision, or somebody darting out into traffic, or a cyclist hitting a bump on a road and then going into a laneway. These were all cyclists travelling in what appears to me to be an experienced, almost quasi-professional way in accordance with the procedures they had adopted for the safety of themselves and the public.

81. In terms of the spectrum of such cases referred to by Justice Simpson and the language sometimes used in other sentencing contexts, I assess the criminality to be well above the bottom end of the spectrum although closer to the lower end than the higher end.

Consideration

84. What was involved was an act of clearly dangerous driving on a straight section of a major highway in Sydney. The weather was fine, the road was in good condition, it was bituminised. The offender’s view of the cyclists was unobstructed. There was no issue, mechanical or otherwise, with his car. There was no alcohol or drug use involved by him. As I have emphasised, the Crown is not relying on, nor does the available evidence suggest, that there was any element of deliberate driving at the cyclists or any of them. However, they were clearly visible. They had a perfect entitlement to be driving on the road in that formation. They were not in any way responsible for the collision. They did absolutely nothing to contribute to the collision.

85. I am unable to find what was the reason for the offender’s manner of driving. He has not given sworn evidence. I do not accept the conjecture of a blackout. This matter remains essentially unexplained and I am therefore left to proceed, and do proceed, on the basis of the agreed facts.

86. However, I need to specify that had there been any such evidence or element of deliberate driving or road rage, this sentencing proceeding would have proceeded on a very different basis. Here the four victims of the dangerous driving causing grievous bodily harm counts have suffered extensive injuries. The three victims on the counts of driving causing actual bodily harm have suffered varying but still, in some cases, serious injuries. Many of the injuries were permanent and ongoing, and have had a significant impact on their lifestyle and their respective lives.

JIRS statistics

87. I have considered the parameters of the JIRS statistics in relation to offences of this nature. However as is common with those statistics the facts of those cases are not known, along with the circumstances of the particular offenders. But those statistics in the broad, and as statistical samples only, would suggest that the sentence I am proposing is not outside permissible range and indeed reflects the findings as to criminality and the circumstances that I have outlined in these remarks without reiterating them.

Sentencing options

88. It has been stressed by Mr Thangaraj SC in his urging that a sentencing option other than full-time imprisonment is available. He relied, and I have re-examined overnight, the decision of Dutton where Justice Howie made the comment that he did in considering the impact of a decision in Whyte, that if the trial judge or the sentencing judge there had determined that the respondent had abandoned responsibility for his own conduct, a full-time custodial sentence could not be avoided.

89. It does not follow that simply because the Court there determined as it did that the driver in that case had not abandoned responsibility for her own conduct that a sentence full-time custodial sentence was inevitably to be avoided. There is nothing in the guideline judgment that suggests that be the case. Simply because an offence is not aggravated by the presence of certain factors, it is not necessarily mitigated by the absence of those factors.

90. Here I have spent considerable time considering the alternatives to full‑time imprisonment. For example, whether a significant fine or a bond or a suspended sentence or an intensive correction order or indeed, as foreshadowed by Mr Thangaraj SC in the course of his detailed submissions, a home detention order or any such sentencing option would be appropriate. I have reviewed those options against the background of the facts and the offender’s personal circumstances. In all the circumstances, none of those options would adequately reflect the requirements of general deterrence. In particular, the circumstances of the driving involved, the consequences of the driving, are such that an alternative to full time custody would not address the dangerousness of the offender’s driving in the context of his driving or his past criminal history, nor indeed the fact that he has been extended lenient sentencing options in the past

Special circumstances

91. There is a proper opportunity for some consideration here to be extended to the offender. He is aged 28. He comes from a supportive family. He has attained a relatively high level of education and employment. He is a person of some initiative but, balanced against that, he has prior convictions and a not unproblematic traffic record.

92. Given the supportive and nurturing upbringing he has had, the offender is likely to find his first time in custody to be difficult. However, while there is medical evidence as to his anxiety, which is also apparent during the sentencing proceedings, there is nothing to indicate that imprisonment will be more onerous on him than for any other offender.

93. I have read the Pre-Sentence Report and taken those matters into account. It does seem appropriate to reduce the statutory ratio of the overall sentence with a non-parole period there as to the total head sentence to one of two-thirds, from that of three-quarters which would normally be the case.

Accumulation, concurrence and totality

94. I turn then and finally to the question of the accumulation, concurrence and totality of the sentence to be imposed given that there are seven charges. They each arise out of the same incident with the same factors of criminality of the driving being relevant to all seven victims. Nevertheless there are seven distinct victims each of whom has suffered in his or her own way.

95. The criminality involved in driving into a group of seven drivers is greater than for a driving offence involving a single cyclist or a single victim in these circumstances. It needs, and is appropriate therefore, that there be some marking of the fact that there are seven different victims by way of a period of partial accumulation in relation to the sentence.

96. This is a difficult matter when I come to consider the impact of totality and what is commonly sometimes referred to as the Pearce principles – Pearce v The Queen (1998) 194 CLR 610. In my view that period of partial accumulation should be of a relatively minor nature. It should be order of two months non-parole period of imprisonment in relation to each of the four separate counts of dangerous driving causing grievous bodily harm.

97. It is also appropriate that each of the actual bodily harm charges should be served wholly concurrently with each other and with the sentences on the grievous bodily harm counts. That is not meant in any way to minimise the fact that each of the seven victims have been separately, differently and in some cases, permanently affected. That period of partial accumulation reflects, and is intended to mark, the fact as I say that there are separate counts with separate victims and the impact of the offence on each of them.

98. The discount for the plea, and the associated remorse, as well as the value of that plea to the facilitation of the criminal justice, including the fact that the victims did not have to give evidence, should be reflected in a discount of 25%. That would effectively mean a discount of nine months’ imprisonment to the sentence otherwise to be served.

Indicative sentences

99. I propose in this case to impose an aggregate sentence. Absent the plea I would have considered all the matters that I have outlined above to warrant the imposition of a sentence of three years imprisonment. To that figure the discount should apply resulting in a total sentence of two years and three months by way of a head sentence.

100. Applying the finding of special circumstances to the total sentence so set out that would result in a non‑parole period of imprisonment of 18 months and that is what I propose to impose. Before I proceed to do that, are there any matters, Ms MacDougall that you wish to raise?

101. MACDOUGAL: No, your Honour.

102. HIS HONOUR: Are there any matters, Mr Crown?

103. HUGHES: No, thank you.

104. HIS HONOUR: Thank you for that courtesy.

105. On each of the grievous bodily harm counts, the sentence will be one of 21 months imprisonment to be served by way of a sentence of non-parole imprisonment of 14 months with an additional term of seven months.

106. On each of the three counts of causing bodily harm by misconduct, the offender is sentenced to a fixed term of nine months’ imprisonment, each such term to be highly accumulated with the sentence on count 1.

107. Each of those sentences on the grievous bodily harm counts will be subject to a period of partial accumulation of two months.

Proposed sentence

108. HIS HONOUR: Thank you. The formal orders I propose are:

1   The offender is convicted.

2 Taking into account a finding of special circumstances, and a plea of guilty, pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999, the offender is sentenced to a period of full-time imprisonment consisting of a non-parole period of 18 months commencing today and expiring on 20 February 2017.

3   The balance term is of nine months expiring on 20 December 2017. So the total term is 27 months but it is actually a non-parole period of 18 months imprisonment, you understand that.

I would ask that you be aware, Mr Kerr, that after the conclusion of these remarks I will be asking the Corrective Services who are present in the back of the Court to take you but I want you to use this opportunity to make your final comments to your family privately in the courtroom

SHORT ADJOURNMENT

HIS HONOUR: I’ve given the parties an outline.

The paragraph on the indicative sentence is simply that in relation to counts 1, 2, 3 and 4 the head sentence is one of 21 months imprisonment with a non-parole period of 14 months. On counts 5, 6 and 7 is a fixed term of nine months’ imprisonment.

So Ms MacDougal you might like to approach Mr Kerr to make sure he understand the actual sentence and he can read it there. I’ll go through that now. Did you see the heading there, sentence, Mr Kerr?

OFFENDER: Yeah.

HIS HONOUR: If you could stand I’ll impose that now.

OFFENDER: Sorry.

Sentence

109. HIS HONOUR: Thank you. The formal orders are - and these are the dates that become relevant.

1   The offender is convicted.

2   I take account a finding of special circumstances and a plea of guilty the offender is sentenced to a period of imprisonment consisting of a non-parole period of 18 months commencing today and expiring on 20 February 2017, you understand that?

OFFENDER: Yes, your Honour.

110. The balance terms of nine months expiring on 20 December 2017. That will be the period of on parole, do you understand that? So the total term is 27 months but it is actually 18 months imprisonment, you understand that.

OFFENDER: Yes, your Honour.

111. HIS HONOUR: I recommend your release to parole on 20 February 2017.

112. Parole will be subject to the following conditions. That you comply with whatever supervision is deemed necessary by Community Corrections and that you would need to inform them of any change of address in which you are living and any change of address not less than seven days before that change occurs, you understand that?

It may be that they will require separate matters in relation to driving and it is likely to be the case that the RTA will be writing to you separately but that is a matter that is not before me at the moment.

Mr Crown, what do you want to do about the s 166 certificate.

HUGHES: Your Honour, I’d invite the Court to dismiss that matter. The negligent driving matter.

HIS HONOUR: I will dismiss the count set out on the sequence set out in the section 166 certificate.

Presumably you’ve got no opposition to that, Ms MacDougal?

MACDOUGAL: No.

HUGHES: Your Honour, there remains a matter of disqualification. I don’t mean to interrupt your Honour’s remarks but so I don’t forget.

Lest I forget to mention it in the absence of an order of the Court there were be a three year disqualification period applicable, minimum 12 months, disqualified from holding a licence. That would need to be from today.

HIS HONOUR: Yes. In my the disqualification period should be one of two years which would cover the - two years, yes, two years from today. Do you wish to be heard against that?

HIS HONOUR: Okay, thank you. Nothing else, Mr Crown? Nothing else, Ms MacDougal?

MACDOUGAL: No, your Honour.

HIS HONOUR: I just indicate that this Courtroom will now be used for other sentencing proceedings. I’ve arranged with the judge presiding in that and I will vacate by 10.30 which I will do. But perhaps I would urge that the victims in the matter might like to vacate the Court first so that there’s no opportunity for tension because I want to ensure that happens generally so I’d be grateful for that.

Perhaps if the family and supporters would remain where they are just for a little while until that happens, thank you.

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Decision last updated: 26 October 2015