District Court New South Wales Medium Neutral Citation: Monk v R [2022] NSWDC 44 Hearing dates: 01 February 2022 Date of orders: 01 February 2022 Decision date: 01 February 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Allow the appeals (2) In respect of sequence 007, confirm the conviction, fine and disqualification period (3) In respect of sequence 006, order the sentence be served by way of intensive correction order to commence from today Catchwords: CRIME — Driving offences — Negligent driving occasioning death Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Road Transport Act 2013 Category: Principal judgment Parties: David Bradley Monk (Appellant) Regina (Respondent) Representation: Michael Smith (counsel for the Appellant) James Staples (solicitor for the Respondent) McGirr & Associates (Appellant) Director of Public Prosecutions (NSW) (Respondent) File Number(s): 2020/00206368 Decision under appeal Court or tribunal: Sydney Local Court Jurisdiction: Criminal Date of Decision: 24 November 2021 Before: Kennedy LCM File Number(s): 2020/00206368 REVISED EX TEMPORE JUDGEMENT INTRODUCTION 1. The appellant David Bradley Monk appealed from sentences imposed by a Magistrate from the Local Court on 24 November 2021 in Sydney. There were three offences, one of them driving across dividing lines to perform a U-turn. In respect of that matter, the Magistrate convicted the appellant but imposed no penalty employing s 10A Crimes (Sentencing Procedure) Act 1999. That appeal is not pursued and is abandoned; I, therefore, confirm the orders of the Magistrate in respect of that offence. THE OFFENCES 1. The second offence is of negligent driving causing death, contrary to s 117(1)(a) Road Transport Act 2013. The maximum penalty for that offence is imprisonment for 18 months with a fine of $3,300 with a disqualification period of three years which may be reduced to a minimum period of 12 months if the Court was so minded. The Magistrate imposed a sentence of ten months imprisonment with a non-parole period of six months to date from 24 November 2021. 2. The third offence before the Court is one of driving motor vehicle with illicit drug in his oral fluid, namely cocaine, contrary to s 111(1)(a) Road Transport Act 2013. For this offence, he was fined $550 against a maximum penalty of $2,200 and disqualified for the automatic period of six months to date from 24 November 2021. The Court has power to reduce that to three months if it was so minded. CONSIDERATION 1. At the beginning of the hearing of this matter today, Mr Smith who appears for the appellant, indicated that the Magistrate appears not to have brought to account the suspension of the appellant's license which occurred on 14 July 2020 with the appropriate notice served upon him by the police officer investigating the collision which has brought him before the Court. This must be so because the Magistrate appears not to have taken to account, at least on the material before me, the fact of the period of suspension as the Magistrate was required to do on the application of s 206B Road Transport Act 2013. Subs (5) of that provision, allows the Court to structure the disqualification period by specifying the end date, and that provides a mechanism whereby the period of suspension can be considered. Accordingly, that part of the appeal I can deal with quickly. 2. In respect of the charge of negligent driving occasioning death, I will confirm the conviction and the period of disqualification of three years which shall expire on 13 July 2023. In respect of the offence of driving a motor vehicle with illicit drug present in his oral fluid, I will confirm the conviction and the fine and the disqualification period of six months. That shall expire on 13 January 2021. It is obvious that with the passage of time that period has already expired, and the remaining disqualification is for the more serious offence. 3. The case presented for the appellant here included the submission that because he drives in excess of 1,000 kilometres a week, it is not surprising that he would have at least some offences on his driving record. I hear that submission made in Court quite frequently and it is one which I do not accept. A great deal of us drive extended distances, travelling to and from work and for the purposes of work and not everybody has the driving record that this appellant has accumulated, or anywhere near it. Being a road user and travelling in excess of 120 kilometre per day on most days, it amazes me that people who are driving at the time I am driving have such blatant disregard of the road rules and the speed limits which are in place to provide at least some protection against injury and damage, and also to facilitate the flow of traffic. In my position as a judge, it is incumbent upon me not to breach the law, as it is for all road users, but particularly in light of the office I hold it would be poor form for me to breach the traffic rules when I am called upon to determine cases such as this. Thus, my use of the devices on my motor vehicles to control the speed of them so they do not exceed the speed limit, which on just about every occasion leaves me travelling at the speed limit or just below it with other road users for the most part travelling in excess of the speed limit. The number of occasions that one sees motor vehicles driving through lights that change to red as they enter the intersections, is also a matter of concern, I must say. Thus, the need for general deterrence receiving appropriate weight and consideration in matters such as this, is clearly demonstrated. 4. The appellant, was a serving police officer in 1991 and although he had only three years' service as I understand from the material before me, he was one of the first responders to an event known as the Strathfield Massacre which occurred on 17 August 1991 when a man of the name Frankum, took eight lives and caused injury to six other people in a rampage upon which he engaged, armed with a firearm and a knife. This apparently, according to the evidence before me, contributed to or perhaps was a catalyst for the beginning of post-traumatic stress which the appellant represents that he now suffers. This was the subject of comment by the psychologist upon whom he attends in her report, which was before the Magistrate, written on 20 August 2021. Para 2.2 contains the following: "In my opinion, Mr Monk's level of stress on the day of the MVA may have influenced his capacity to be fully focussed on everything around him, whilst behind the wheel of his vehicle (as well as his haste regarding his visit to his solicitor). However, I do not believe that he would have been incapable of driving per se." 1. His evidence regarding the post-traumatic stress that he has experienced and its impact upon him raised a question in my mind as to why he was driving a motor vehicle at all, on the day of this event, because he clearly was not focussed upon the task at hand. And consequently, he took the life of another member of the community because of his demonstrated negligence. 2. The time since his service as a police officer has had him making, at the very least, unwise decisions, leading to his prosecution for supplying prohibited drugs that allegedly occurred on 22 September 2009, and between 7 and 16 July 2009, and between 1 May 2009 and 9 February 2010, with the consequence that he was sentenced to imprisonment for six years, including a non-parole period of four years, commencing on 9 February 2010. There were ten offences involving the supply of drugs and dealing with the proceeds of crime which led to the aggregate sentence it appears of six years. 3. His driving record is poor; it extends over nine pages; it begins in November 1988 when he was issued with a provisional licence; there are multiple examples of exceeding the speed limit, driving negligently is another offence appearing on his record, using a mobile phone when in charge of motor vehicle is another offence on his record, disobeying a traffic control light, another offence on his record. He has had multiple notifications from Roads and Maritimes Services about suspension and warning of the extent to which he was accumulating points throughout the driving history. And so, it is against that background that the events with which the Court is now concerned took place. 4. The appellant was born in 1971. The deceased was born in 1941. On 13 July 2020, which I understand was a Monday about 4.50pm, the appellant was driving a Ford Ranger utility, south along Macquarie Street Sydney in the vicinity of Parliament House, Sydney Hospital, and the Mint. Macquarie Street Sydney, a road with which I am familiar. At this point it consists of two lanes southbound, two lanes northbound; the carriage ways for north and southbound traffic are divided by unbroken lines in the middle of the road. Thus, it is unlawful to make a U-turn across those lines. 5. The appellant was attending premises for the delivery of documents concerned with litigation in which he was involved. He saw that there was a parking space on the opposite side of the road for his direction of travel, south along Macquarie Street, and he decided to make a U-turn and seize the opportunity to park in that place. For whatever reason, which is not entirely clear to me, he reversed the vehicle after stopping it. He said that he used his rear-vision mirrors to see if the road was clear behind him for traffic and noted that there were no cars coming down in his direction. The only vehicles of which he was aware were some distance back and appeared to be stopped at traffic lights, and thus he reversed the vehicle, intending to then make a U-turn into the parking spot that he saw on the other side of the road. Whether he was experiencing a level of anxiety lest he miss out on the opportunity to take this spot, or for whatever other consideration might have been acting on his mind, including the hypothesis advanced by the psychologist, he did not see the unfortunate John Schaeffer who was, upon the material I have, clearly standing on the footpath, perhaps close to the carriage way. The vehicle struck the deceased and then made its U-turn. 6. The fact that the appellant was not keeping a lookout as he engaged upon this manoeuvre is clear from the fact that he was unaware according to his representations that he had struck the deceased; that information came to him from another member of the public who confronted him and told him that he just knocked somebody down. There is some conflict about whether the rear of the vehicle struck a flagpole on the eastern side of Macquarie Street but little turns upon that, ultimately. The problem for the appellant is that he could not have been keeping a proper lookout. He was perhaps acting with some haste, hoping to get across to the parking spot, and regrettably, his negligence resulted in the loss of the life of Mr Schaeffer. 7. The facts go into some detail with the examination of the scene and markings on the road showing where the deceased fell. Mr Schaeffer suffered injuries that are described in some detail in the facts. I do not intend to rehearse them for the purposes of this judgement. I have read them. I have seen what he unfortunately suffered, and I am conscious of the fact that his family are observing these proceedings from another location. I do not want to add to their distress by once again revisiting what he suffered, but they can be assured that I have considered the description of what he experienced. He did not recover consciousness. He was ultimately taken to hospital where in due course life support was terminated. 8. The appellant was interviewed by police. He made the following points. He had been travelling towards Hyde Park to attempt to park in the vicinity of the church. He saw a loading zone and decided to park there. Both directions of traffic were clear when he made the manoeuvre. He had checked mirrors before he began reversing. He could not recall whether he had indicated to reverse or to make the U-turn. The vehicle was registered to his company. He drove the vehicle nearly every day. He did not feel any collision. He was not aware of any cracks to the rear nearside light on the vehicle found upon examination. He thought he only reversed about two or three metres. He did not recall seeing any pedestrians. He believed he had been reversing straight back. 9. He gave evidence before me today, referring to his experiences in life, leading to what he claims as post-traumatic stress and describing what he recalls of his manoeuvre on this occasion. I do accept, ultimately, his evidence which he gave in response to cross-examination by the Crown, in which I am satisfied that he is sincerely remorseful for this tragedy that caused and that he has demonstrated appropriate contrition and remorse and satisfies the requirements of s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999, in that regard. 10. The Crown provided submissions as has Mr Smith, counsel for the appellant. The assessment of this matter requires the Court to consider the objective seriousness of the negligent driving which is informed by the degree of negligence demonstrated. I agree with the Crown submission that in this instance, the offence of negligent driving causing death is above mid-range of objective seriousness and that the line provided in s 5 Crimes (Sentencing Procedure) Act 1999 has been crossed. Mr Smith has not made submissions to cavil with that proposition, I note. 11. The appellant pleaded guilty early in the process and therefore is entitled to the utilitarian discount of 25%. I am of the view that the Magistrate's sentence specified for the offence fairly reflects that 25% has been applied to the sentence that would have otherwise been imposed. 12. The facts, do not establish to the requisite standard that cocaine which was found in the appellant's system was a contributing factor to the offence; the pharmacologist was of a view that the level of the product found in the analysis would indicate that the consumption of cocaine was at least 24 hours before the occasion when the sample was taken. The evidence given by the appellant is that he used cocaine, apparently on Thursday or thereabouts, preceding this event. One way or another, the evidence he gave is not inconsistent with what conclusions were reached by Judith Pearl. 13. He has been attending the psychologist Linda Chamberlain who provided a report, and has continued to do so, albeit one might say rather spasmodically, for assistance with his symptoms attributed to posttraumatic stress, including anxiety and sleep deprivation. The psychologist in the passage which I quoted from 2.2 in her report seems to be rather qualified in the views she offered with regard to his level of stress, but one way or another, it does not seem to me to be consistent to say that he was not incapable of driving per se but at the same time, was so stressed that he was not properly focussed on what he was doing. At 3.2 she wrote: "Whilst he admits to making mistakes across his life, he generally tries to live according to pro-social values, focussing on his family, small circle of close friends and his business. On the day of the MVA, Mr Monk was attempting to assist his solicitors in his pending Safe Work NSW legal issue by dropping off documents to their office to ensure that the information arrived without mishap. He may have been preoccupied by what was happening in his life, however, he has a very clear account of the movements of his vehicle that day and the fact that he was only slowly reversing, a short distance when the accident occurred. As I said, 'this was not a case of me driving recklessly, like an idiot'." 1. He is not accused of driving recklessly or driving like an idiot, but he was clearly and without a doubt in my mind, negligent, not aware of the presence of a pedestrian and not aware that he struck the pedestrian until it was brought to his attention by a member of the public. 2. There are references speaking to his characteristics and qualities by those who offer their support and I have brought those to account. The material tendered by the Crown includes victim impact statements. The deceased's partner provided a lengthy document and it describes how strong the relationship was, how positive their life together was, how she saw him as her soulmate, and how they had spent time together. She had the opportunity to spend more time with him that day but she was obliged, she thought, to get back to work and did not spend the afternoon with him as he wanted her to do; and that, as she writes, was a matter that she now regrets. I have read that document. It reflects what people in her position suffer with the loss of a loved one from an event such as this. 3. There is also a document provided by Prina Hagege who speaks of the impact upon her of this event and another from the deceased's daughter Joanne which is much more concise but carries with it the same level of emotion. 4. Victim impact statements are valuable for two reasons. They give the Court a reminder of the impact of crime such as this upon members of the community when someone such as the appellant disregards their obligations and drives in such a fashion as to take life. It also gives the family the opportunity to confront the appellant so that he has placed before him, the effect of the decision he made on that day. The material is not considered in aggravation of the offending or the punishment the appellant must suffer but it does demonstrate once again the impact of such consequences upon the victims of an event such as this. 5. I have also considered the appellant's criminal history and his driving record. Once more, that does not aggravate the offending in the sense that a sentence that is proportionate in this conduct does not suffer an increase or is not accompanied by an increase because of a poor past record, but it does inform the need for specific deterrence, and the extent to which the appellant has lost the opportunity for leniency that might otherwise have been provided to him had he a clear record. 6. I am satisfied as I said, the line of s 5 has been crossed and no other sentence but imprisonment is appropriate. However, I am satisfied that this is a case where the punishment can be provided by way of an intensive corrections order with conditions that I shall announce. 7. The Crimes (Sentencing Procedure) Act 1999 at s 66 requires the Court to bring to account community safety as the paramount consideration in deciding whether to make an intensive corrections order in relation to an offender; the Court is to assess whether making the order or having the offender serve the sentence by way of a full-time detention is more likely to address the offender's risk of reoffending. 8. I have had submissions put to me regarding the driving record that had been accumulated by the offender in recent years. It is the fact that over the period from September 2016 there have only been three offences, serious enough though they are, which reflects a lower rate of misconduct than is indicated in the earlier period of driving. 9. There is nothing before me to indicate that it is necessary for him to go to gaol to protect community safety. I note the assessment made by Community Corrections in the sentence assessment report, that he is at the low end of the risk of re-offending. He has been assessed as suitable to submit to a home detention order. A report was provided on 4 November 2021 by Jillian Dawe. The supervision for this order that I am about to make will be by way of the Hornsby Community Corrections office; immediately after I adjourn, he is to make contact with the Hornsby Community Corrections office to facilitate the implementation of the intensive corrections order I am about to make. 10. The decision I have come to has included consideration of the purposes of sentencing, articulating s 3A Crimes (Sentencing Procedure) Act 1999. 11. I confirm the convictions. 12. In the case of the offence of negligent driving occasioning death, I confirm the sentence of imprisonment of 10 months. However, I order that the sentence be served by way of an intensive corrections order. The sentence shall commence today in accordance with s 71 Crimes (Sentencing Procedure) Act 1999. The standard conditions apply. They are, that the offender does not commit any offence and he must submit to supervision by a Community Corrections officer. I order pursuant to s 73A(2)(a) of the Act that the appellant submit to a home detention condition for the duration of the sentence of 10 months. 13. The appellant's address was confirmed, and he was instructed to report to the Hornsby Community Corrections office forthwith. The Appellant acknowledged that he was bound by these orders of the court, copies of which are to be sent to the Appellant's home and to his solicitor. 14. The disqualification periods imposed were as previously announced. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 March 2022