R v Morrison [2019] NSWDC 928

District Court New South Wales

Medium Neutral Citation: R v Morrison [2019] NSWDC 928 Hearing dates: 5 September 2019 Date of orders: 18 September 2019 Decision date: 18 September 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: Convicted The offender is sentenced to an aggregate term of imprisonment consisting of a head sentence of 3 years and 6 months with a non-parole period of 21 months. Catchwords: CRIMINAL LAW – Sentence – Driving occasioning death – Cause harm by misconduct – Driver fatigue – Exceptional circumstances - Totality Legislation Cited: Crimes Act, Crimes (Sentencing Procedure) Act Cases Cited: Kerr v R [2016] NSWCCA 218 Legge v R [2007] NSWCCA 244 R v Barnett [2016] NSWDC 302 R v Craig Besant [2003] NSWCCA 388. R v Edwards (1996) A Crim R 510 R v Errington (2005) 157 A Crim R 553 R v Jarad Smith [2016] NSWCCA 75 R v Jurisic (1998) 45 NSWLR 209 R v Melissa McKeown [2013] NSWDC 22 R v Whyte [2002] 55 NSWLR 252. Category: Sentence Parties: The Crown Graham Morrison Representation: Counsel: R J May – Crown Solicitor Advocate P Lange - Offender

Solicitors: Director of Public Prosecutions Aquila Lawyers – The offender File Number(s): 2017/220307

Judgment 1. HIS HONOUR: Graham Morrison is before the Court for sentence in relation to two principal offences of dangerous driving occasioning death in breach of s 52A(1)(c) of the Crimes Act, for which is provided a ten year maximum penalty. No standard non-parole period has applies. Additionally, there is an automatic three year licence disqualification, however, the Court is empowered to reduce that to a period no less than 12 months in appropriate circumstances. 2. Additionally, as related matters, Mr Morrison falls to be sentenced for two offences of cause bodily harm by misconduct, contrary to s 53 of the Crimes Act, which has a maximum penalty of two years' imprisonment and/or a fine of $11,000. An automatic disqualification period of three years applies, but again the Court has a discretion to order a shorter period up to but not less than a disqualification of 12 months. 3. The balance of matters were withdrawn by the prosecution and dismissed by me when I heard the evidence and the submissions of the parties on 5 September 2019 at this Court. I simply did not have time to properly consider and conclude the matter on that day. It should be understood however that other sentence and trial commitments mean that these remarks really have the character of an ex tempore decision rather than a fully reserved one. 4. I also record that in relation to the two principal offences, the deaths caused were first to Kobi Van Der Heyden who was then nine years of age, and Taite Van Der Heyden, who was then 12 years of age, and the two charges that relate to cause bodily harm by misconduct, that the first of those charges related to injuries to Jeanette Van Der Heyden, who is the mother of Kobi and Taite, and also the mother of Scout Van Der Heyden, who was the victim in the other offence of cause bodily harm by misconduct. 5. Very shortly I am going to detail the facts in relation to these matters. Before I do that I want to observe that the sentence proceedings in these matters highlighted the enormity of the tragedy of two young children being taken from their family and their loved ones well before their time, and resulting in what I infer to be the effective decimation of the Van Der Heyden family. That loss has inevitably, I anticipate, caused and will continue to cause considerable grief and heartache to those directly affected. The material led in the sentence proceedings also make it clear that those losses caused considerable grief and heartache to the offender himself, and I will return to that issue in due course. 6. As Judge Yehia said in R v Barnett [2016] NSWDC 302, "In matters such as this judges are asked to perform an impossible equation. No human life," or in this case lives, "can be equated with a period of imprisonment. No gaol term can return a loved one, and a life should not be simply measured by punishment meted out to an offender." See R v Jarad Smith [2016] NSWCCA 75 per R A Hulme J at 18, endorsing remarks made in R v Melissa McKeown [2013] NSWDC 22. 7. The sentences that I am going to impose today do not and cannot measure the lives of Kobi or Taite. Instead the sentences will reflect the sentencing discretion properly informed by legal principle. The sentences must reflect an adequate punishment, recognising the harm done, and denouncing the conduct of the offender. The sentences must also reflect the objective seriousness of the offences, the principles of general deterrence and specific deterrence, taking into account in particular the offender's moral culpability, his prospects for rehabilitation, his level of remorse, and the likelihood or otherwise of future offending. 8. The facts are agreed between the parties. The offender is Graham Morrison, born 24 December 1963. As at the date of the horrific accident and the offences on 6 May 2017, he was 53 years of age. The offender is the holder of a Queensland multi-combination heavy vehicle licence, and was employed at the relevant time as a full-time long distance truck driver with interstate transport company Redstar Transport. He routinely drove a shift that went from midnight to 6am. 9. At about 4.45pm on 5 May 2017 the offender departed the Redstar depot in Brisbane in a B-double truck that was comprised of a Volvo prime mover, an A trailer, and a B trailer, on a regular trip from Brisbane in Queensland to Dubbo in New South Wales. Prior to commencing this trip, the offender signed a declaration with his employer to the effect that he was reporting fit and ready to undertake the designated trip. The offender was aware that, under Redstar Transport fatigue management procedure, if during the course of his journey he felt drowsy or was "nodding off," he must stop his vehicle safely and report immediately to operations. 10. From about 2.50am on Saturday 6 May 2017, the offender and his truck were approximately 60 kilometres from Dubbo and he was driving in a southerly direction towards Dubbo on the Newell Highway. This section of the highway has one traffic lane in each direction, with overtaking lanes at certain points. The north and southbound traffic are separated by painted white lines on the roadway, varying between double unbroken centre dividing lines, a single broken line, and combination single unbroken and single broken centre dividing lines. The sign posted speed limit is 110 kilometres per hour, and the speed limit applicable to heavy vehicles such as that driven by the offender was a hundred kilometres per hour. Conditions were dry and fine. 11. The offender's truck was fitted with a Garmin GPS device with a front facing camera with the capacity to video record the road ahead. The video function was both activated and recording at relevant times. From about 2.51 in the Garmin video footage shows that the offender's truck began to periodically drift into the oncoming/incorrect/northbound lane before its course was corrected to be within the southbound lane. From 3.04am this occurrence of drifting became more regular and occurred at least once every minute in the period between 3.04am and 3.30am. 12. From 3.20am to 3.30am the video footage depicts the offender's heavy vehicle drifting into the incorrect lane on approximately 20 occasions before being corrected on each occasion and continuing its travel in the southbound lane. On at least five of these occasions the offender's truck drifted almost entirely onto the incorrect side of the road before correcting and continuing its travel in the southbound lane. At no time during these manoeuvers was the offender lawfully overtaking another vehicle. 13. From at least 2.51am the offender's driving was dangerous both to himself and to other road users as he was not keeping his vehicle within its legal laneway. He had some awareness that he was fatigued, which is evident from repeated self-corrections of his vehicle's errant position on the roadway, and he did not stop his vehicle safely to rest, but kept driving a multi-combination heavy vehicle in that condition. 14. At around 3.30am, 37 year old Jason Van Der Heyden was driving his silver Nissan X-Trail registered to Queensland on the Newell Highway in a northerly direction away from Dubbo. In other words, in the opposite direction to the way in which the offender was travelling. Mr Van Der Heyden had four passengers in his car, being his wife, aged then 41 years, who was sitting in the front passenger's seat and their three sons. Taite aged 12, was either seated in the rear seat behind the front passenger, or in the middle seat. Kobi, aged 9, was either in the rear seat behind the front passenger or in the middle seat. And Scout, then aged four, was in the rear seat behind the driver in a booster seat with a six point harness. 15. The Van Der Heyden family had left Warrnambool in Victoria at about lunch time on 5 May 2017 and were travelling to their home in Gladstone in Queensland. The parents had been sharing the driving, taking regular breaks, and had had a sleep stop. The two eldest boys, Taite and Kobi, regularly switched their seating position behind the rear seat during breaks, which explains why it is not identifiable who was sitting where at the relevant time. 16. At about 3.30am on 6 May at about 3 kilometres north of Brocklehurst, the offender was approaching Mogriguy Creek in Terramungamine, which is about 15 kilometres from Dubbo, driving his heavy vehicle. At a point about 620 metres north of Mogriguy Creek, the offender's vehicle crossed over the white painted double unbroken centre dividing line, crossing across the northbound lane before completely departing the road on the western side. The offender's vehicle continued through approximately 200 metres of scrubland and collided with a large low hanging tree branch before returning to the roadway in the northbound lane directly across the path of the approaching vehicle driven by Mr Van Der Heyden. 17. Mr Van Der Heyden was driving at the prevailing legal speed limit for passenger vehicles of 110 kilometres per hour. Mr Van Der Heyden attempted to avoid the offender's vehicle which was coming from the offroad scrub to his left by steering to his right and entering the southbound lane. A collision could not be avoided and the front offside of the offender's heavy vehicle struck the nearside of the Van Der Heyden's vehicle on the eastern edge of the roadway. The offender's vehicle continued south through grassed scrubland on the eastern side of the road for about 300 metres before arcing back towards the highway and eventually coming to rest upright and with both trailers still attached in a marshy area of the Mogriguy Creek. The offender was trapped in his vehicle. 18. The Van Der Heyden vehicle rotated by 180 degrees and came to rest on the eastern side of the Newell Highway. During the impact the rear nearside quarter of the Van Der Heyden's vehicle was sheared off and both Taite and Kobi were ejected from the vehicle, suffering extensive and instantly fatal injuries. Scout Van Der Heyden suffered a right adrenal hematoma. His mother, Jeanette, suffered pain and bruising to her head, neck, sternum, abdomen, and left bicep. Mr Jason Van Der Heyden suffered minor bruising and abrasions. 19. Mr Van Der Heyden got out of his vehicle and upon realising that two of his children were missing, immediately commenced searching for them with a torch in the dark. He located both of his older sons where their bodies had each come to rest and found them to be obviously deceased. Emergency vehicles were contacted and police and ambulance arrived shortly thereafter. 20. Jeanette, Jason, and Scout Van Der Heyden were taken to Dubbo Base Hospital for assessment and treatment, and Scout was thereafter transferred for further treatment to Westmead Children's Hospital. The offender was extricated from the prime mover of his vehicle and was taken to Dubbo Hospital for assessment and treatment. He was later transferred to Royal North Shore Hospital where he underwent surgery for a back injury. 21. Police seized the offender's vehicle logbooks and the Garmin GPS device for later examination. While at Dubbo Base Hospital, blood and urine samples were provided by both drivers. No alcohol or other drug capable of establishing impairment in either driver was found. During the subsequent police investigation, the offender's log books were examined and reviewed by senior investigators employed by Road and Maritime Services. An analysis confirmed the following things. 22. Mr Morrison had worked 55 hours and 45 mins in the prior five days to the collision. The predicted journey time for his journey from Brisbane to Dubbo using the National Heavy Vehicle Regulator journey planner was ten hours and 27 minutes. He was ten hours into his journey at the time of the collision. On 5 and 6 May 2017 there were no breaches of the terms of allowed work and rest times, as prescribed in the Heavy Vehicle National Law and Regulations by the offender. 23. Another way of saying that is, the entries made by the offender in the logbook and the rests taken were compliant with his obligations as a heavy vehicle driver. His last recorded major rest break of 13 hours occurred on Thursday 4 May 2017. His last rest break prior to the collision was recorded as a 30 minute break from 2am to 2.30am at a point approximately 28 kilometres north of Gilgandra and about 80 kilometres away from the point of the collision. 24. I have had the benefit of seeing a number of colour photographs which helped me understand the passage of the vehicle in the way that I have described. Additionally I have had the benefit of what is called a survey CAD plan, which plots the movement of the vehicle as tracked relative to marks on the road and things that could be divined from photographs by investigators. The relevant section of the highway was examined and a large number of thin curving tyre marks coming from the western edge of the road to a point close to the point of impact between the two vehicles was noted and photographed. The cause of those marks was consistent with a vehicle experiencing a large amount of left steering input, the force of which caused an outward weight shift. The marks are consistent with a prominence of weight on the right-hand side of the vehicle, consistent with the vehicle experiencing side slip, which is otherwise known as "yawing", as a result of left-hand steering input. 25. Investigation confirmed the presence of ten suitable locations within a 25 minute period available to the offender prior to the point of impact to safely stop his vehicle off road, taking into account his speed and the length of his vehicle. Four of those opportunities were available in the four minute period immediately prior to the offender's vehicle leaving the roadway. It was determined that mechanical defect, roadway condition, and environmental factors - in other words, weather, lighting, and the like - were not contributing factors in this collision. 26. The offender was not formally arrested in relation to this matter and he did not participate in an electronically recorded interview with police in accordance with his legal right to silence. It is common ground between the parties that Mr Morrison has not spent any time in custody in relation to these matters to date, that he pleaded guilty in an early fashion, and is entitled to a full 25% utilitarian discount, which I will apply to the indicative sentences when I come to announce an aggregate sentence in due course. 27. In assaying the objective seriousness of the offending I take into account observations of the Court in past guideline judgments, including R v Jurisic (1998) 45 NSWLR 209 and more recently R v Whyte [2002] 55 NSWLR 252. I have been assisted not insignificantly by the careful written submissions prepared by Mr May for the prosecution and the detailed oral submissions made on behalf of the offender. 28. The typical case which is contemplated in Whyte has the following characteristics: 1. A young offender; here the offender was middle aged. 2. A person of good character with little or no prior convictions. I note here that this offender has no convictions at all. 3. Death or permanent injury to a single person. Here of course there was death occasioned to two people. 4. The victim is a stranger, which was the case here. 5. No or limited injury to the driver or the driver's intimates. That is not the position here. The offender, as I will come to in due course, was significantly injured in the collision as well. 6. Genuine remorse. Here there is evidence of genuine remorse, and I will say more about that when I come to deal with the offender's subjective case. 7. A plea of guilty of limited utilitarian value. Here, as I have observed, the utilitarian value of the plea was very high, and not insignificantly, apart from being entered at the earliest possible occasion relative to the service of the full prosecution brief, had the outcome that none of the Van Der Heyden family needed to be prosecution witnesses, which is a very important issue in a case like that and not always met in this class of offending. 1. Within Whyte were identified a number of potential aggravating factors, some of which are present here and quite a number are not. 1. The extent and nature of the injuries inflicted is an aggravating circumstance here, but of course death is a critical ingredient of both of the more serious charges, and so there should not be double counting. 2. The number of people put at risk. Here there is not an identifiable number of people put at risk apart from the Van Der Heyden family, but it is inevitable across that passage of driving across more than half an hour that there was, notionally at least, a number of other people put at risk. 3. Degree of speed. There is nothing to suggest excessive speed. 4. Degree of intoxication or substance abuse. There is nothing to suggest that feature here. 5. Erratic or aggressive driving. Sometimes there will be driving that is both erratic and aggressive. Here there was clearly erratic driving, but it could not be characterised as intentionally aggressive. 6. Competitive driving or showing off. There is nothing to suggest that conduct here. 7. Length of the journey over which others were exposed to risk. I have already dealt with that. There was a significant period of time. There have been recorded cases in intermediate courts of appeal where drivers have put people at risk for hours, however here it was certainly a period of more than half an hour. 8. Ignoring of warnings. Sometimes that will be ignoring of warnings by say police vehicles or other motorists. Here the warning that I consider was ignored was the messages to self from the offender that he must have experienced to know that he was dozing off or wobbling on the road. 9. Escaping police pursuit. There is nothing to suggest that here. 10. Degree of sleep deprivation. There is nothing to suggest that here. 1. Failing to stop. That is an aggravating circumstance here, but not failure to stop in the sense of a failure to stop to avoid responsibility for the accident, but rather a failure to stop and rest in a reasoned fashion ahead of time. 1. In considering the guideline judgment I take into account that it remains a check or a sounding board, see Kerr v R [2016] NSWCCA 218 at 96, and that it is not a starting point but rather a reference point. See R v Errington (2005) 157 A Crim R 553 at 40. I note that it is, "not a tramline and should not be used to impermissibly confine the exercise of sentencing discretion." Legge v R [2007] NSWCCA 244 at 59. 2. It has been repeatedly observed by intermediate courts of appeal that this class of offence which so often involves offenders of otherwise blameless character, and who are community contributors, need to expect periods of imprisonment to be imposed as an exercise on general deterrence. That is because driving of itself has an implicit level of risk and danger and members of the community need to be discouraged from driving dangerously with horrific consequences. Of course that is the case with somebody who is a professional driver and accordingly drives a significant amount of kilometres in any one year, as was the case with this offender before his driving career effectively came to an end as a result of the offences. 3. It has generally also been a position articulated by intermediate courts of appeal that it is only offenders who have very low moral culpability such as the dangerousness occasioned by momentary inattention that will escape a full-time prison sentence. The offender here does not have low moral culpability. Against that, nor he does not have high moral culpability. There are matters that come before these courts and before intermediate courts of appeal that involve drivers who intentionally drive dangerously, set out to speed dangerously, overtake and sometimes menace other drivers with their vehicles. 4. This was not such a case, but the fact that the offender was on notice for some time that he was tired, or rather I draw an inference that he must have known for a time that there were opportunities for him to stop, and that his determination to continue mean that his moral culpability is less than low but does not achieve the mid-range of objective seriousness in my view. There is nothing to suggest that the offender intentionally abandoned his responsibilities to drive properly. 5. In terms of matters that are in aggravation for purposes of s 21A of the Crimes (Sentencing Procedure) Act, I accept the submission of both parties that there are no matters that can be identified in aggravation. I accept as mooted by the Crown and accepted by those who appear for Mr Morrison that the matters in mitigation for the purposes of s 21A(3) are that the offence was not part of a planned or organised criminal activity, that the offender had a very limited traffic record, and he had prior good character. Additionally, there was a plea of guilty. 6. When I assess in all the swings and roundabouts, assessing his moral culpability and all the other matters that I have put about objective seriousness, the objective seriousness of this offending, taking into account all the countervailing issues, is somewhere in a mid-point between the top of the low range and the mid-point of the middle range. That relates to each of the offences, in my assessment. 7. As a case that might be helpful both in terms of establishing a relevant range and in identifying some common features as well as some distinguishing features from the current matter, the Crown provided me with the case of R v Craig Besant [2003] NSWCCA 388. Although Mr May, very responsibly in my view, did not put that this was a true analogous case but because Mr Besant was a professional driver, and because his dangerous driving resulted in the deaths of two people rather than one, there was those commonalities between that case and this case. 8. There are a number of features of Mr Besant's case which resulted in a sentence that will be more stout that the one to be imposed on Mr Morrison today. Some of these features that emphasise the way in which a case that looks similar from one perspective can be quite different from another. Mr Besant was on a tight schedule, as opposed to this offender, and he did not record any rest times in his log book. After an accident that had the effect of, in a car being driven by a man killing his wife and daughter as a result of the impact, Mr Besant refused to undergo a blood test, and a urine test proved positive for the presence of amphetamines and there was a bag of amphetamines found under the driver's seat of the vehicle. 9. The sentencing judge found that the principal cause of Mr Besant's fatigue, which was the cause of his dangerous driving, was his lack of sleep caused by working all day and driving through the night with inadequate rest stops during his journey. A contributing factor to the fatigue being his use of amphetamine. Obviously those are factors that are not directly analogous here. 10. A further similarity matter is that the dangerousness of driving which was similar to this in terms of sometimes leaving the roadway took place for over half an hour. But having said that, in driving erratically Mr Besant also drove on the wrong side of the road without warning for purposes apparently of overtaking and the like. In that case there were identifiably ten other persons apart from those involved in the accident who were lucky to escape with their lives as a result of the poor driving of Mr Besant. 11. In addition, the road conditions were almost cyclonic and quite appalling in terms of heavy rain. And although Mr Besant, like Mr Morrison, was driving within the legal speed limit, the Court found that his driving in those conditions was too fast notwithstanding that fact. 12. Nonetheless it was a helpful part of my consideration in assessing the objective seriousness of this offending when compared with that of Mr Besant. 13. I want to move to some matters that are personal to the offender. The offender has no criminal record. He has a limited traffic record. He has a clean record for driving in New South Wales, and ironically it was in New South Wales that he conducted most of his professional driving up until the tragic accident. He has a very limited traffic record in Queensland where he has been resident for some long time. It is an enviable record compared to many records of professional drivers that I have seen. 14. The offender gave oral evidence to which I will return shortly. His oral evidence means that I am prepared to give more weight both to assessments made of him by Community Corrections in the sentencing assessment report and the careful assessment made of him made by Dr Stephen Allnut, psychiatrist. With some minor qualifications, the offender adopted the contents of the history provided to both Dr Allnut and to the Community Corrections 15. The offender was an impressive witness. It was clear in my assessment of him that he has experienced, continues to experience, and expressed eloquently, given that he is not a loquacious man, genuine remorse. In these courts judges often hear evidence from witnesses who say they are sorry. Sometimes they are sorry, and more often they are sorry for the situation in which they find themselves. Although Mr Morrison was able to in due course describe the effects of this accident on himself and on his family - and I will come to that in due course - I was left with a profound impression that Mr Morrison will never absolve himself from the costs of his offending driving. I would have to say that I doubt that I have heard more pungent evidence of real remorse ever, having sat as a magistrate for about five years and in this Court for the last few years. 16. Whether it was meaningful or not to Mrs Van Der Heyden who was here to hear the evidence and again today to hear my remarks, the offender had the courage to address some remarks directly to her, which is something that is very rarely seen in these courts. 17. The offender was able to demonstrate in his evidence and in a documentary fashion that he always takes seriously his obligations in terms of vehicle maintenance and taking the proper and lawful rest. He said that he thought in his usual practice it was highly likely that he fell asleep between 2 am and 2.20 am on his last registered rest break. He said that his usual practice is always to climb into his sleeping cabin and sleep when those breaks occur, and I had no reason to doubt that that was the fact. 18. He was unable to explain either to himself or to the Court why it was that he continued driving and why it was that if he had warning signs that he was tired that he did not answer them. I have no doubt that he will punish himself for the rest of his life for those poor decisions. 19. The offender was himself significantly injured and was hospitalised for a significant period of time. That means that there is a feature in this case of what is known as extra curial punishment. Here the extra curial punishment is a multi-layered artefact of the offender's offending. That is, he was seriously injured and he was also seriously averse to the idea of driving as a result of what had happened in his offences. 20. He had an attempt to return to work that was unsuccessful. He and his wife had built themselves up into a position where they were paying off a mortgage on their family home and had two investment properties that were also being paid off, as I understand the evidence. Given the offender's inability to work, his wife having a modest occupation as a teacher's aide and him ceasing to become the primary breadwinner as a result of his injuries, and the costs of legal fees and other consequences of his offending and the accident, in due course each of the properties had to be sold and he and his wife find themselves tenants in what was formerly their family home with no real assets. 21. All of those matters are extra curial punishment in my view. 22. The situation is made slightly more complex when I come to consider whether there are exceptional circumstances in terms of the effect on family of the offender's imprisonment. It is clear from cases like R v Edwards and cases that follow that authority that the effect on a family needs to be quite exceptional to be taken into account in a way that mitigates the length of the sentence that would otherwise be imposed. 23. Here I find there are exceptional circumstances on that basis. The reason that there are exceptional circumstances are that the offender and his wife are New Zealand citizens. They came to live in Australia and they have made their lives here and effectively they have lived here all of their adult and working lives. The terms of their special visa means that even though they have a general entitlement to residence and the like, as I understand it, they are not entitled to the kind of benefits that an Australian citizen is in terms of, for instance, Centrelink relief by way of disability, unemployment, aged pension, and such. 24. What that means is I accept the offender's evidence, that the family are down to their last few hundred dollars. Very recently the offender's wife has been diagnosed with cancer, which has resulted in a principal tumour and some further tumours in her body. On the medical evidence before me, that condition is being treated with aggressive chemotherapy, although material from the offender's wife, to which I also give weight, suggests that she has needed to miss a couple of cycles of chemotherapy as a result of the significant effect on her of that treatment. That sort of sequalae are not unknown in the treatment of aggressive cancers. 25. The medical material before me makes it clear that the offender's wife is in a very poor medical condition. She suffers nausea. I do not have any evidence of the prognosis, but given that there is the talk of radiation treatment to deal with other tumours when the current chemotherapy is concluded, one can draw an inference that there is at least a possibility that Mrs Morrison's life expectation is significantly reduced as a result of her current medical condition. That means that the limited funds that the family were able to garner from her employment are at an end. 26. I take the view because of the unusual situation where there is no government welfare support, the loss of income and health for the offender, the loss of assets, together with the recent dire diagnosis for the offender's wife, in those matters, none of which by themselves would be an exceptional circumstance, in a matrix do constitute exceptional circumstances. 27. That finding has a couple of effects. That material, along with the very genuine remorse, and the finding that I make that the offender is entirely unlikely to reoffend, mean that the length of the sentence that would otherwise be imposed in relation to each offence, given the objective seriousness that I have found, is reduced. I also take into account that time spent in custody will be much more onerous for Mr Morrison, given he will be serving his first sentence , carrying the feelings of significant remorse that he has in relation to his conduct and his feelings for the family of the victims. Second, that he will be serving his time feeling that he has failed in his role as a breadwinner and as a primary caregiver to his wife. It is also inevitable, in my view, that he will serve his time wondering whether he will be released while his wife remains alive. 28. I take into account the character witnesses that have been provided on behalf of Mr Morrison. Mr Wright is a person who was also an interstate truck driver for many years who describes the offender as honest and trustworthy in all aspects of his life, his work, and that he, in his assessment, took driving of heavy vehicles very seriously and responsibly. 29. Mr Donovan is a person who has known the offender for almost 20 years as a work colleague and as a friend. He describes the offender as having a strong work ethic, being diligent, honest, and caring, consistent with making sure of doing the right thing. He makes observations of the very deep effects that the offender's offending and the consequences of it have had on the offender and his wife, and records what he expresses as the offender's empathy towards everyone affected by his offending. 30. Mr Higgins is somebody who has known the offender for about 14 or 15 years, and in circumstances in which the referee and his wife were newly in Australia without family support, that they were provided a great sense of community and support by the offender and his wife. Mr Higgins considered the offender to be: "a stable influence in our lives, and through many difficult times in our walk of life we have appreciated the support and encouragement that the offender brought to them". 1. The reason I record some of those matters is because sometimes a Court will be faced with people who are of good character in the sense that they have no criminal convictions, but this is an example of a member of the community who contributes positively over and above not breaking the law. 2. Dr Allnut provides a detailed assessment of the offender based on a history that, as I have said, the offender adopted in evidence before me. As an example of what I have already said about remorse, Dr Allnut records the offender as having said to him: "I caused such heartache for that family. The worst thing you could do is leave a family distraught. They'll never get over it. Their pain will be a hundred times more than mine. I caused such damage. I criticised people that did what I did, and I have gone and done the exact thing. I am eating words that I spoke. There is no way out of this. I'm broke and I'm a bastard. I can't forgive myself. I've done the unspeakable." 1. I consider that passage captures the flavour of what I have described about the attitude of the offender, both to the victims of his offending, his attitude to his own offending, and the self-recrimination that I doubt will ever abate for him. 2. I have had regard to all the principles of purposes of sentencing, the purpose of s 3A of the Crime (Sentencing Procedure) Act. I have determined not to allow the strong, even compelling, subjective case presented by the offender to overweigh the objective seriousness of the offending. Mr Lange appearing for the offender on the last occasion correctly, in my view, conceded that the s 5 threshold had been crossed and that it was inevitable not only that the offender serve a period of imprisonment, but that period of imprisonment would have to be of a length that it needed to be served in full-time imprisonment. 3. He frankly conceded that if I were persuaded to deal with Mr Morrison by way of an intensive corrections order served in the community, that that would be insufficient, particularly to do the work of general deterrence. Specific deterrence has less weight in this particular sentencing exercise, not because it is irrelevant, but simply because I take the view that the work of specific deterrence has already been undertaken by Mr Morrison going back to Queensland to put his affairs in order knowing that it was inevitable that he was going to be imprisoned today, the seriousness with which he has taken his offending and the way in which he has punished himself ever since the offences were committed, mean that I am persuaded that he has already been deterred to never behave in the same way again. 4. The parties agreed with each other in submitting that it was appropriate where there were related matters before the Court on a s 166 certificate that I could deal with those matters together with the two principal offences in imposing an aggregate sentence for the purposes of s 53A of the Crimes (Sentencing Procedure) Act. It is inevitable that the Court needs to contemplate notions of totality, partial accumulation, partial concurrence, on every occasion when an aggregate sentence is imposed here. In the circumstances of this particular matter, there is a high level of concurrency between the two indicative sentences for the most serious offences. 5. The two matters of causing harm by misconduct, absent the serious offences, may well have been dealt with in a way short of a custodial sentence, but I have indicated indicative sentences in relation to those matters too as a pragmatic reality of this sentencing exercise. 6. The Crown did not want to be heard about a reduction of the automatic disqualifications that would flow, and I take into account because if at the time that he has his liberty the only meaningful way in which Mr Morrison may be able to recover his family's financial position is as a driver, I take into account the fact that he will be off the road for the period that he is imprisoned and then a further 12 months. I have determined to reduce the automatic disqualifications in each case to a period of 12 months. 7. The formal orders will be that the offender is convicted in relation to the four offences. In relation to count 1, there is an indicative sentence of three years. In relation to count 2 there is an indicative sentence of three years. I should be understood that those periods have the full 25% utilitarian discount attached to them, so that the indicative sentences otherwise would have been four years in each case. 8. The indicative sentences in relation to each of the cause harm by misconduct are four and a half months, which mean that but for the utilitarian discount they would have been six months in each case. 9. There is an aggregate sentence of three years and six months to commence today on 18 September 2019 and expiring on 17 March 2023. There is a non-parole period of 21 months, which means the earliest date of release to parole is 17 June 2021. I have found special circumstances being the offender's first time in custody, and some of the matters that I have already referred to in relation to his extra curial punishment and the need for an extended period of supervision to make his transition back into community life. 10. The proportion between the head sentence and the non-parole period is 50%, which is significantly rearranged from that otherwise required by s 44(2) of the Crimes (Sentencing Procedure) Act, and I have intentionally changed the proportion between the head sentence and the non-parole period to that degree. 11. I recommend to the State parole authority and/or to Community Corrections that upon Mr Morrison's release to parole that he be permitted to have his supervision to parole transferred to Queensland as quickly as possible. 12. I direct that the copy of Dr Stephen Allnut's report and the Shailer Park Medical Centre patient summary go with him, with the warrant, and I recommend, officers, that the medication go with him. 13. Mr Morrison, you will have heard what I have said about how sorry you are, and how I am punishing you today. I hope it comes to a point where you can stop punishing yourself, because nothing is going to bring those two boys back. You being able to pick up the pieces of your life when you are released, whether your wife is still with you or not, are an important thing that you will need to do for yourself and for the community. 14. Once again, I observed on the last occasion that this was a very difficult sentencing exercise. I am glad again for the dignity that you showed in particular, ma'am.