Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Peberdy v R [2023] NSWCCA 144 Hearing dates: 9 December 2022 Decision date: 21 June 2023 Before: Davies J at [1]; Ierace J at [2]; R A Hulme AJ at [120] Decision: (1) Grant leave to appeal; (2) Appeal dismissed. Catchwords: CRIME – Appeals – Appeal against sentence – Dangerous driving offences arising from fatal head-on vehicle collision – Where sentencing judge found matter was "not one of momentary inattention" – Whether purported factual errors caused sentencing discretion to miscarry – Whether error in assessments of objective seriousness and moral culpability Legislation Cited: Crimes Act 1900 (NSW), s 52A Cases Cited: Fuller v R [2022] NSWCCA 203 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 Category: Principal judgment Parties: David William Peberdy (Applicant) Rex (Respondent) Representation: Counsel: D Randle (Applicant) S Traynor (Respondent) Solicitors: Anderson Boemi Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2020/102755 Decision under appeal Court or tribunal: District Court Date of Decision: 4 March 2022 Before: N Williams DCJ File Number(s): 2020/102755 JUDGMENT 1. DAVIES J: I agree with Ierace J. 2. IERACE J: The applicant seeks leave to appeal from a sentence imposed on him on 4 March 2022 by N Williams DCJ following his pleas of guilty to two counts of dangerous driving occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900 (NSW), and two counts of dangerous driving occasioning grievous bodily harm, contrary to s 52A(3)(c) of the Crimes Act. 3. The maximum penalty for an offence against s 52A(1)(c) is 10 years imprisonment and against s 52A(3)(c) is 7 years. Neither type of offence has a standard non-parole period. The applicant received an aggregate sentence of 5 years' imprisonment to commence from the date of sentence and expire on 3 March 2027, with a non-parole period of 3 years which will expire on 3 March 2025. He received concurrent periods of disqualification from driving for a period of 3 years in respect of each offence, which will apply from the date of his release back into the community. 4. The applicant has advanced two grounds of appeal, which are as follows. "Ground 1 The learned sentencing judge mistook key facts with regard to the available evidence concerning the applicant's driving conduct, causing the sentencing discretion to miscarry. Ground 2 The learned sentencing judge erred in the characterisation of the objective seriousness of the subject driving." The background to the offences 1. An agreed statement of facts that was tendered at the sentence hearing was to the following effect. The offences arise from a head-on motor vehicle collision that occurred on Wednesday 18 March 2020 on the Golden Highway, which is a major regional road, on a section that had one lane of traffic in each direction and a speed limit of 100kph (I note that the indictment stated that the offences occurred at Dunedoo, which I therefore presume was the nearest town to the site of the collision). The weather at the time was fine and sunny, with light traffic (it was apparent from a photograph that was incorporated in the agreed facts that the terrain where the collision occurred was flat). 2. At the time of the offences, the applicant was a licensed driver, aged 40. 3. At about 4:40pm, the applicant was driving his white Holden Caprice (the Holden) in a north-easterly direction towards Dunedoo, with the cruise control set to 97kph. He was the sole occupant. 4. At the same time, a Hyundai i30 (the Hyundai) was being driven in the opposite (south westerly) direction by Shannon Sibley, aged 25. In the front passenger seat was her partner, Matthew Larson. In the nearside (kerbside) rear passenger seat was Shannon Sibley's daughter, "Anna", aged two and a half years. In the offside (driver's side) rear passenger seat was "John", aged 11 months, who was Ms Sibley and Mr Larson's son. [1] Both children were strapped into forward-facing 5-point harnessed child seats, that were appropriate for their age. Seated between them, in the centre rear passenger seat, was Ms Sibley's brother, Tyson Hardin, aged 23. 5. Between 4:40pm and 4:46pm, the applicant was using his mobile telephone, utilising "hands free" to speak with his wife. Due to bad reception, the telephone calls repeatedly dropped in and out. At the same time as the applicant was on the telephone to his wife, he received a text message, at 4:58:05pm, that remained 'unread'. 6. As the applicant drove in an easterly direction on a straight section, he approached "a slight left-hand bend". Ms Sibley, driving in a westerly direction, rounded the same bend, which was "a slight right-hand bend" from her direction of travel. The agreed facts continued: "The offside of [the applicant's] vehicle travelled 1 metre onto the incorrect side of the road straddling the centreline. [Ms Sibley] caused her vehicle to cross into the eastbound lane in an attempt to avoid a collision. [The applicant] attempted to avoid a collision by crossing back into the eastbound lane and as a result the front offside of [the Holden] collided heavily with the front offside of [the Hyundai] in an offset style head-on collision in the centre of the Highway." 1. The Holden continued its line of travel off the roadway to the north, coming to rest on the northern embankment with significant damage to the front offside. The collision caused the Hyundai to rotate in a clockwise direction, coming to rest across the westbound lane of the roadway, facing south. The tyre marks at the scene confirm the path of each vehicle prior to the collision. 2. The telephone call between the applicant and his wife continued, but the reception cut out again for 15 to 20 seconds, during which the applicant's wife was saying "Can you hear me? What's happened?" The phone reception cut back in and the applicant's wife heard the applicant say "Fuck, fuck". The phone call was ended at 4:58:42pm. 3. A passing motorist, Robert Tyack, happened upon the collision shortly after it had occurred and saw Mr Hardin crawl from a window of the Hyundai. Mr Tyack could hear a child crying from inside the Hyundai. He assisted Anna from her car seat and rendered assistance to her. Mr Tyack observed Mr Larson get out by himself from the Hyundai. Mr Larson and Mr Hardin were both yelling and appeared very distressed. 4. The applicant got out of his vehicle, approached the Hyundai and removed John from his car seat. The applicant placed him in the recovery position and attended to him. Several more motorists arrived from both directions and rendered assistance to John, Anna, Mr Larson, Mr Hardin and the applicant. 5. An ambulance arrived on the scene shortly after the collision. CPR was performed on John for 15 minutes, without success. He was pronounced deceased at the scene. 6. Anna was stabilised, airlifted to Westmead Children's Hospital and placed in a medically induced coma. Mr Larson was airlifted to Westmead Hospital and discharged the following day. 7. The steering column was pushed up and over Ms Sibley. She had been wearing a seatbelt which had to be cut during the extraction process. She was pronounced deceased at the scene. Her body was ultimately extracted by specialist police and vehicle rescue volunteers after several hours. 8. Mr Hardin was transported by road to Dubbo Hospital and then flown to Royal North Shore Hospital on 19 March 2020. The applicant was flown to Westmead Hospital. According to the agreed facts, he was released on 19 March 2020. 9. An examination of the scene of the collision was conducted: "Tyre marks were located on the roadway from both vehicles indicating their paths of travel immediately before the collision. Tyre marks from [the Holden] were located straddling the centre dividing line. These marks were approximately 15 metres long and curved from the westbound lane back into the eastbound lane at the point of impact. The tyre marks were approximately 1.6 metres apart from each other and appeared to remain a consistent width apart. The tyre marks indicate the offside tyre of [the Holden] was approximately one metre onto the incorrect side of the road at the beginning of the marks." 1. At the area of impact, gouge marks were visible in the road surface. The gouge marks were made by the force of the impact being dispersed and forcing the front of the vehicles downwards onto the roadway. 2. Investigators downloaded the Holden's airbag control module. The data indicated it was travelling at 97kph on cruise control in the five seconds prior to the collision. The data also revealed the applicant did not brake in the five seconds prior to the collision. Post-mortem results and injuries suffered 1. A post-mortem of Ms Sibley's body revealed extensive upper and lower limb trauma with multiple bone fractures and extensive head trauma. The direct cause of death was multiple injuries sustained in the collision. A CT scan revealed that she had an 8-10 week old foetus in utero. 2. A post-mortem of the body of John indicated a complex injury to the right forehead which extended onto the right upper cheek region. Imaging revealed extensive fracturing of the right frontal bone which had extended upward and affected both parietal bones above each ear. There was air around the brain and a subarachnoid haemorrhage on the surface of the brain, which alone would have been fatal. There were closed fractures of the left humerus and both femurs. 3. Anna presented to Westmead Children's Hospital with an unstable cervical spine ligamentous injury C5/6 and spinal cord contusions of T10/11 with lower limb neurology. She had contusions to the left eyelid, bilateral temporal abrasion, bilateral lung contusions and abdominal subcutaneous contusions. She was admitted to the paediatric Intensive Care Unit under the trauma team. On admission, she was moving both upper limbs spontaneously but had "nil" lower limb movement and bilateral reduced lower limb tone. She had a distended bladder and did not have any lower limb reflexes. 4. On 24 March 2020, the rehabilitation team took over her care. She required catheterisation four times daily and bowel management. She received intensive inpatient rehabilitation including regular physiotherapy, occupational therapy, speech pathology, psychology and social work input. 5. During her admission, Anna showed some increased active movement of her lower legs and some active left hip flexion, extension and adduction. She also had intermittent weak right ankle flexion. She had increased sensation to urinate, however she continued to require catheterisation. She was discharged from Westmead Children's Hospital under the management of the rehabilitation team at the John Hunter Hospital and into the care of her maternal aunt and her husband. 6. At the time of the agreed facts, which were signed on 11 March 2021, Anna had regained some movement in her legs, but remained very weak and unable to walk independently. She required the use of a wheelchair to move around and remained in a cervical collar. She also required leg splints and daily physiotherapy, including supported standing and other mobility exercises, much of which was attended to by her carers. She was able to four-point crawl and "bum shuffle". She could easily transition from a prone or supine position to a sitting position and was able to get to high kneeling, with support. The nerves that controlled her bladder and bowel remained compromised by her spinal cord injury. She was not continent to urine and continued to require catheterisation four times a day to ensure her ongoing kidney and overall health. To ensure bowel health, she required daily medication and supervision. 7. Mr Hardin suffered C3-C5 end plate fracture, left mandible fracture, and right distal radius fracture. He underwent a C3/C5 posterior fusion requiring a bone graft and the insertion of locked rods. 8. On 27 March 2020, Mr Hardin underwent surgery to repair the mandible fracture with removal of teeth and the insertion of a plate. The fracture to the distal radius was treated by non-surgical intervention with a black slab splint followed by a fibreglass cast for five weeks. He was discharged on the same day, according to the agreed facts. The applicant's account to police 1. The applicant provided a written statement to police on 1 April 2020. He said that while he was driving, he was listening to an audiobook and talking to his wife on the phone, both on "hands-free". The phone was operated by controls on the steering wheel. The agreed facts note: "[The applicant] did not have 'much' recollection of just prior to the impact but does recall seeing [the Hyundai] in front of him and attempting to avoid the collision by swerving hard to the left." 1. After extracting himself from his vehicle, the applicant attempted to call triple zero without success. He went to the Hyundai and assisted Mr Larson from the vehicle. He opened the rear passenger door, allowing Mr Hardin to get out. He observed John in the car seat "folded all the way forward" and not wearing a shoulder harness. He unclipped the straps near his legs, removed him from the car and placed him in the recovery position, noting his breathing was shallow and irregular, before allowing other motorists to take over his care, as he felt he was going into shock. Images and diagrams in the agreed facts 1. The agreed statement of facts incorporated four photographs and five diagrams. Three of the photographs were of the vehicles following the collision. Two were of the Hyundai, in situ in the roadway. The bonnet area of the vehicle, that is, the area beyond the windscreen, was compressed almost flat. There was significant damage to the front seat area. The Holden was off the road on a slope with compression damage to its front. 2. The remaining photograph is an elevation perspective of the roadway showing the bend, as seen from an easterly direction, that is, the view that Ms Sibley would have had. It showed a broken centre line in her direction of travel and an unbroken line in the applicant's direction of travel. 3. All five diagrams were plans, that is, a purported view from above. The first depicted tyre and gouge marks on the road and the path of travel of the Holden after the collision to where it came to a rest on the embankment. The remaining four were a series of details of the roadway with the tyre and gouge marks, depicting the paths of travel of the vehicles, their likely position at the point of impact and the subsequent rotation of the Hyundai to its stationary position. The sentence hearing 1. The offences were the subject of Court Attendance Notices (CANs), so the defendant was not held on remand. He entered pleas of guilty to the four charges in the Local Court. 2. The sentence hearing took place on 1 December 2021 in the District Court at Dubbo. Due to the Covid-19 pandemic, the Crown appeared by AVL. Her Honour reserved her sentence judgment and stood the matter over to 4 March 2022 in Sydney. The matter was subsequently listed for mention on 1 March 2022. On that date, her Honour sought further material as to the degree of visibility on the bend of the road. Discussion ensued concerning further material being tendered, being a larger version of a still image of the road bend that appeared in the agreed facts and a video of the bend taken from a police car travelling through the bend the following day. On 4 March, prior to delivering judgment, large format images of the four photographs in the agreed facts and the police video were tendered. The sentencing judge informed the parties that she had received a copy of the applicant's traffic record. Brief submissions were made in relation to it. The Crown bundle on sentence 1. At the sentence hearing on 1 December 2021, the Crown tendered the applicant's criminal record which had one entry, being the possession of a prohibited weapon without a permit in 1999, when he was 19 years old. He received a 12 months' recognisance without a conviction being recorded. 2. His traffic record had multiple entries for speeding, including one that was recorded 12 days before the offences. He had held a driver's licence since 1995. 3. A sentencing assessment report was tendered. An assessment of the applicant's risk of future offending that was undertaken with the Level of Service Inventory-Revised (LSI-R) yielded a result of him having a low risk of reoffending. Victim impact statements 1. A victim impact statement written by Anna's maternal aunt was read by her husband. She referred to her younger sister's generous, loving character and the fact that she was expecting her third child at the time of her death. She stated that Ms Sibley had studied to be a childcare teacher and had a passion to be a mother. 2. She described the physical and mental injuries that were suffered by her brother, Mr Hardin, as life-long. She noted that Anna was in hospital for a month and, because of her spinal cord injury, she had to wear a brace from the top of her head to her waist for almost three months. She and her husband are Anna's carers. She has been informed that it is highly unlikely that Anna will be able to walk independently and that her bladder and bowels will not work correctly again. She and her husband perform catheters up to seven times a day. There are multiple medical appointments to attend each week in Newcastle and in Sydney. 3. A victim impact statement was written by Glen Sibley, who is Ms Sibley's father and thus Anna and John's maternal grandfather, and tendered at the hearing. He related how Ms Sibley was born premature and was fortunate to survive her birth. She was a loving mother and he described the relationship between her and her two children. He praised Anna's maternal aunt and her husband who had to "virtually drop everything" to commit to the lifelong care of Anna. 4. Both victim impact statements were profoundly moving in their record of the devastation occasioned to one family by these offences. The case for the applicant 1. A certificate of completion of a traffic offender intervention program, multiple written character references and two forensic reports were tendered on behalf of the applicant. 2. In a section of the certificate of completion of the traffic program for comments by the participant, the applicant noted the benefit that he gained from the program and that he had been driving for 25 years. 3. The character references were by five business colleagues who were also friends, three lifelong friends (a nurse, a solicitor and a manager of a Christian community agency), two people who knew him through his scouting activities, an Anglican minister and his personal trainer. The referees attested to the applicant's good and moral character, his contribution to business and the community including to the Scout movement, his devotion to his family, his church attendance, their experience of him as a safe driver and the devastation he was experiencing as a consequence of the offences. The Christian community agency manager also gave evidence as to the applicant's character and remorse, saying that, "I believe that he's absolutely remorseful and genuine in that". 4. A letter from the applicant's wife was tendered. She stated that she and the applicant had been married for eight years and had a blended family of four children, aged between 7 and 17 years old. She was also involved in the Scouts movement and referred to some of their other joint community activities. She described the shattering impact of the offences on their lives. 5. A letter of apology written by the applicant, that was addressed to the surviving victims and their families, was tendered. The applicant accepted responsibility for the collision and expressed his remorse. A forensic psychiatrist's report 1. A report by Dr Richard Furst, a forensic psychiatrist, dated 25 October 2021, was tendered. The report added to the applicant's background information provided by the applicant's wife in her letter. The applicant completed a Diploma in Construction Management and commenced work as a construction manager in his early 20s, continuing to work in the industry for most of the next 20 years, until the time of the report. 2. The applicant's first marriage was between 2005 to 2008 and produced one child. Between 2011 and 2018, he ran his own commercial construction management company. The business suffered from two clients becoming insolvent, leading to its demise. Since then, he had worked with his second wife, who he married in 2012, and had been able to repay creditors a total of $1 million over a period of 12 months. 3. As to his mental health, the applicant referred to a history of claustrophobia, such that panic attacks could be triggered by being in a confined space. It prevents him, for example, from entering tunnels, including driving through the Sydney Harbour Tunnel. He referred to a panic attack he experienced whilst on his honeymoon in 2012, that led to him seeing multiple psychologists over the following six years and being prescribed medication for anxiety and depression. 4. In October 2018, the applicant was admitted to a private psychiatric unit for three weeks, in the context of overwhelming stress, anxiety, depression and excessive drinking, as well as marital issues. Dr Furst recorded a history of excessive drinking since the applicant's mid-20s and leading up to his admission to the private clinic. He engaged in Cognitive Behaviour Therapy and was prescribed different medication. He attended a 10-week post-clinic series of therapy sessions. Essentially, his life had improved considerably in 2019 and 2020, leading up to the offences. 5. Dr Furst noted that the day after the offences, the applicant was referred by his general practitioner to a clinical psychologist, Maxine Blackburn, for trauma therapy, who continued to see him for the 18 months prior to Dr Furst's report. The applicant reported "feeling hollow, grief and feeling overwhelmed" and experiencing flashbacks, particularly of John "dying in his arms". 6. Dr Furst assessed the applicant as being of average to above average intelligence. He diagnosed the applicant as having a Post-Traumatic Stress Disorder (PTSD), a major depressive disorder with melancholic features, an alcoholic use disorder (in remission) and claustrophobia. Dr Furst noted that: "… people [who] have a prior history of depression and anxiety and/or emotional fragility and/or childhood trauma issues are much more vulnerable to developing post-traumatic stress disorder when confronted by life-threatening traumatic events than the average person of 'normal' fortitude. Therefore, I would regard it as more likely than not [the applicant's] severe post-traumatic stress disorder … has been the product of both his internal vulnerability towards depression and anxiety and the nature of severely traumatic events that took place that day …". 1. Dr Furst recommended that the applicant be placed under the care of a psychiatrist and mental health nurse working for Justice Health and that he be treated with antidepressant medication, and a clinical psychologist working for Corrective services "to address his offending behaviour, his PTSD and his depression". Dr Furst opined that the applicant's PTSD: "… will remain chronic and debilitating, giving him a relatively poor prognosis of recovering over the longer-term, even with the recommended treatment and even though he is likely to engage in the proposed treatment plan /rehabilitation." A clinical psychologist's report 1. A report dated 25 October 2021 by Maxine Blackburn, clinical psychologist, was tendered. The applicant had been seeing her weekly since the accident. She referred to his remorse, stating that he "suffers much shame, guilt and torment on a daily basis over the car crash". She noted that it had impacted on his ability to work, causing him to reduce his work commitments. 2. Ms Blackburn noted that the applicant had suffered from "a terror of confined spaces" following a near-death experience when a child, when he was trapped in an upturned kayak in rapids. 3. Ms Blackburn made diagnoses of an "extremely severe" PTSD, an "extremely severe depression", "extremely severe anxiety" and "extremely severe stress". She said: "It is my professional opinion that [the applicant] will suffer greatly from the separation and isolation of incarceration, and will be unable to cope emotionally and mentally without intensive Psychological treatment and support." The applicant's evidence 1. The applicant gave evidence at the sentence hearing. He confirmed the profile that had emerged through the forensic reports, character references and the letter of his wife. 2. The applicant explained that on 18 March 2020, he was travelling from a work site in Dubbo to Maitland, where he planned to visit another work site the following day. He had not consumed alcohol or taken any drugs before the trip and was not tired. His vehicle was his own and was in sound mechanical condition. When the speed limit became 100kph, he set the cruise control to 97kph. He confirmed that at the time of the accident he was having a hands-free phone conversation with his wife and that the reception was dropping in and out. He said, traffic was "light, there was virtually no one on the road". He was asked what he recalled of the accident: "I was on the phone to [his wife] and the reception cuts in and out but when that happens she'll just call me back and I don't remember anything specific about that it was just a bit patchy and the next thing I remember is there's a car right in front of me and I had to, had to turn so hard to get out of the way of the car." 1. The applicant agreed that he accepted "full responsibility" for the accident. 2. He said that he had a permanent injury to his left ankle. His incarceration would be a "financial struggle" for his wife in maintaining mortgage payments. 3. The applicant was cross-examined about the circumstances of the accident. He said that he had "probably been on the road for about an hour". He agreed that there was unbroken centre line on his side of the road, and that the road was clear. He denied that he was distracted by the phone call with his wife that was cutting in and out; he said that being on the wrong side of the road had "nothing to do with the phone". He agreed that he would have been able to see the Hyundai "for quite some distance". Address by counsel for the applicant on sentence 1. Counsel for the applicant submitted that the Court would conclude that the offences were consequent to momentary inattention: "something happened … for a couple of seconds that in some way caused him to take his eyes off the road". Counsel submitted that a logical inference was that the vehicle continued going straight as the road curved away to the left, leaving him on the wrong side. Counsel submitted that none of the factors of aggravation that were identified in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 were present. Counsel accepted that a full-time custodial sentence was appropriate and that, if of a length less than 3 years, an intensive correction order (ICO) would be appropriate. 2. Defence counsel sought a finding of special circumstances because of the applicant's age, his mental health issues and the fact that this would be his first time in custody. Address by the Crown on sentence 1. The Crown submitted to the sentencing judge that the moral culpability of the applicant amounted to "more than momentary inattention", because of the nature and condition of the roadway. It was necessary to take into account the relevant circumstances; a major road with a speed limit of 100kph and one lane in each direction, where being on the wrong side left an on-coming vehicle with "very little room to move to try and take evasive action". 2. The Crown submitted that the offending fell below the middle of the range for such offences, but not at the lowest end. The Crown accepted that the length of the journey over which others were exposed to risk was short and limited to the time that the applicant's attention was diverted from the roadway ahead of him. The Crown acknowledged that the applicant's pre-offence mental health issues and the impact of the offences on his post-offence state of mental health would result in his time in prison being more onerous. It did not want to be heard against a finding of special circumstances. 3. The Crown conceded that the applicant's traffic record did not "impact the sentencing exercise to any particular degree" in view of his evidence that he "drives a lot". The sentence and the remarks on sentence 1. As noted, the sentencing judge imposed an aggregate sentence of 5 years' imprisonment to commence from the date of sentence and to expire on 3 March 2027, with a non-parole period of 3 years to expire on 3 March 2025. The indicative sentences for each count against s 52A(1)(c), that is, involving the deaths of Shannon Sibley and John, was 2 years and 6 months. For the two counts against s 52A(3)(c) involving grievous bodily harm, the indicative sentence in respect of the grievous bodily harm done to Anna was 2 years 2 months and in respect of Tyson Hardin was 18 months. 2. The sentencing judge observed that the criminality contemplated by ss 52A(1) and (3) varied from momentary inattention at the lower end of the scale, to "abandonment of moral responsibility" at the higher end. 3. In relation to his traffic record, the sentencing judge stated: "It does show, in my view, whilst not as Madam Crown indicated, in any way to aggravate any sentence that may be imposed by the Court, but it does indicate a repeated disregard of traffic laws over a number of years." 1. Her Honour accepted "unreservedly" that the applicant had symptoms consistent with posttraumatic stress, depression, stress, anxiety and panic attacks. She noted Dr Furst's assessment that the gaol environment: "… coupled with his severe PTSD, severe depression, suicidality and claustrophobia, would make a custodial sentence far more onerous on him than the average offender who comes before the Courts." 1. The sentencing judge related in detail the content of the character references, and concluded: "… it speaks well that [the applicant] can assemble such an impressive set of references from a cross section of the community. [He] is spoken of in glowing terms. He has a good work ethic. Many of the referees speak of the remorse expressed by [the applicant]. I have already dealt with the issue of remorse. The referees also speak well of [his] honesty and integrity. None of that is in question. The references are a poignant reminder, not that one is necessary, that matters like this are tragedies on a number of levels." 1. The sentencing judge made a positive finding as to the applicant's prospects of rehabilitation based on his prior good character, honesty, integrity, the support of his family and friends and his work ethic, to a point that it was "one of the most positive cases for good prospects of rehabilitation that I have come across in my time as a criminal lawyer". 2. The sentencing judge found that the applicant had unimpeded visibility of the Hyundai: "The facts indicate that [the applicant] was not familiar with the roadway where the incident occurred. Whilst the facts do not recite the distance of visibility, from close observation of the enlarged photographs and close observation of the video drive through … I am prepared to find that there was considerable visibility in each direction. From my observations it is possible that there was at least some 400 metres in each direction. Visibility was therefore excellent which I note [the applicant] conceded under cross examination on 1 December last year." 1. As to the difference between the parties as to whether the offences could be attributed to momentary inattention, the sentencing judge said: "With respect to the cause of the collision it is not readily apparent from the agreed facts. There is reference to the fact that [the applicant] had been speaking on the phone to his wife via Bluetooth which dropped out intermittently. [The applicant] says he cannot recall what he was doing before the collision. However, what is obvious and what is accepted from the agreed facts from the diagram, [the applicant's] vehicle crossed onto the wrong side of the road by approximately a metre on a point in the road where there was a slight left-hand bend and signage on the roadway indicating the unbroken centre line operating in his direction. I am of the view that given the significant lines of sight that the victim's car would have been visible from a distance of at least 200 metres. The weather was fine. It was 18 March which meant there would have been plenty of daylight. In those circumstances, I am of the view that this was not momentary inattention. [The applicant] rather failed to keep a proper lookout and failed to manage his car properly allowing it to go onto the wrong side of the road for some number of seconds. … I note that the speed limit was 100 kph and that it is fair to assume that a vehicle coming on that country road in the opposite direction would be entitled to do 100 kph which is roughly the speed [the applicant] was travelling, albeit about 3 kilometres less. I am firmly of the view that the matter presently under consideration is not one of momentary inattention despite the comprehensive and thorough submissions made by counsel for [the applicant]." 1. The sentencing judge referred to aggravating features that were identified in Whyte at [216], three of which were "extent and nature of the injuries"; "the number of people put at risk"; and "the length of the journey during which others were exposed". In relation to the latter two factors, her Honour said: "I note that few of those factors are present in the matter under consideration. There were others put at risk, namely those travelling on the Golden Highway in the near vicinity that afternoon. Mr Larson was also put at risk. I note that there were others, the bystanders who came and offered assistance in the aftermath of the collision. I am of the view that those persons were potentially exposed to risk. The length of the road was not insignificant. I note that that Golden Highway is the main route from Dubbo to Newcastle and I take judicial notice of the fact that many people travel upon that road. In those circumstances, it cannot be found that there were few other people put at risk. The length of the road that was travelled given the speed involved, in my view, was not insignificant." 1. Her Honour continued: "Noting the agreed facts in these circumstances, I am not persuaded that any issue regarding the slight left-hand curve should be taken into account in determining the seriousness of the matter. As I have said, [counsel for the applicant] puts in his written submissions and emphasised in oral submissions that the matter was one of momentary inattention. The Crown submitted that this was not a matter of momentary inattention, but involved something more." 1. As to "the extent and nature of the injuries", the sentencing judge found that Mr Hardin's injuries were "towards the lower end of what is contemplated by grievous bodily harm" and Anna's injures were "towards the upper end". 2. The sentencing judge concluded: "… I find that there are no aggravating features present in this case and as I said, in all the circumstances, I am of the opinion that the matter is most certainly not one of momentary inattention. The matter is far more serious than [that,] noting the roadway concerned that the fact that [the applicant] was not familiar with the roadway, he still failed to keep a proper lookout on a road which he was not familiar with. The fact that the other vehicles on the highway could be expected to be travelling at about 100 kph and the complete failure of [the applicant] to remain in his own lane on a slight left hand curve and the ultimate failure to keep his eyes on the road and to observe oncoming vehicles. However, it is not a matter which comes anywhere near an abandonment of responsibility. After much contemplation of all the given facts in terms of assessing where the moral responsibility sits, I have reached the conclusion that this is a matter where the moral culpability of [the applicant] is concerned can be described as significant, given the amount of roadway that he must have traversed without keeping a proper regard to the road ahead." 1. The sentencing judge made findings of objective seriousness in respect of each offence. Counts 1 and 2, concerning the deaths of Shannon Sibley and John, and count 3, concerning the grievous bodily harm occasioned to Tyson Hardin, were "just below the mid-range". Count 4, concerning the grievous bodily harm occasioned to Anna, was above the mid-range. 2. Her Honour referred to the "strong subjective case", in particular, the evidence of the applicant's remorse: "[The applicant] has expressed remorse and as I have said in the body of my judgment above, this is one of the most profound examples of a positive finding of remorse this Court has seen. No one, as I said, could have not been affected by the obvious distress that [he] displayed, the obvious and heartfelt distress and his heartfelt and genuine apology to the victims by [the applicant] which I have read out in full this afternoon. I confirm that I have found the positive finding of remorse." 1. Her Honour found that the strong subjective case did not detract from the need for the sentence to reflect considerations of general deterrence, but it did lessen the need for specific deterrence. 2. The sentencing judge found that an ICO did not arise for consideration, since the appropriate sentence would be one of imprisonment for a period in excess of three years. 3. Her Honour found special circumstances on the basis of it being the applicant's first time in custody, the need for an extended period of supervision to ensure he receives appropriate treatment for his mental health issues and assistance with his reintegration back into the community and because his time in custody would be more onerous for him due to his mental health issues. In the general mix of factors, her Honour also took into account the impact of the Covid-19 pandemic on the access of prisoners to programs and contact visits with family and others. The application for leave The applicant's submissions Ground 1: The learned sentencing judge mistook key facts with regard to the available evidence concerning the applicant's driving conduct, causing the sentencing discretion to miscarry 1. The applicant submitted in respect of ground 1 that the sentencing judge's finding that the overall objective seriousness was "not one of momentary inattention" was founded upon three findings of fact that were not reasonably open to be made beyond reasonable doubt. 2. As noted at [77] above, the sentencing judge applied three aggravating factors that were identified in Whyte, two being: "number of people put at risk" and "the length of the journey during which others were exposed to risk". Her Honour found there were others put at risk, namely, those travelling on the Golden Highway in the near vicinity that afternoon, including Mr Larson. Her Honour added: "I note that there were others, the bystanders who came and offered assistance in the aftermath of the collision. I am of the view that those persons were potentially exposed to risk." 1. The applicant submitted that this finding was contrary to the evidence, noting the applicant's unchallenged sworn evidence was that "there was virtually no one on the road". The fact that other drivers came along and stopped to provide assistance to the victims after the collision did not detract from that evidence. 2. The applicant submitted that her Honour's reliance upon the length of the Golden Highway, its status as the main route between Dubbo and Newcastle and judicial notice of the fact that many people travel upon that road, to sustain a finding that that there were not "few other people put at risk", assumed "a pattern and/or extended period of dangerous driving", which was contrary to the evidence. 3. The evidence was that the applicant's dangerous driving, which was confined to his vehicle being on the wrong side of the road, was for "no more than a few car lengths". The applicant calculated that, at a speed of 97kph, the applicant's vehicle was on the incorrect side of the road for 0.56 seconds. The sentencing judge's finding as to the length of the roadway that the applicant was on the wrong side was central to her finding that the applicant's moral culpability was significant. 4. The applicant noted the sentencing judge's finding that the applicant had unimpeded visibility of the Hyundai, as extracted at [75] above, and submitted: "It is accepted that there was ample factual basis for her Honour to conclude that the applicant had unimpeded visibility in relation to the roadway ahead, including oncoming traffic. What is in dispute is the nature and extent of any available evidence to draw the factual conclusion that the applicant was distracted for the entire period of time during which the victims' oncoming vehicle would have been visible. Simply put, the applicant respectfully takes issue in this Court with the lack of a factual basis for the fundamental presupposition apparently underpinning the sentencing judge's approach, namely, that he never saw the oncoming car at any point during the period when it can be inferred that it was visible to him, ostensibly because his eyes were off the road for an extended period of time." 1. In the course of an exchange with counsel during the sentence hearing, the sentencing judge characterised the bend in the road as "very slight", although it was described in the agreed facts as "slight". The sentencing judge consistently described the bend as "slight" in the remarks on sentence, but did not refer to the bend as a factor relevant to the determination of objective seriousness. The applicant submitted that: "… the slight left hand bend was, at least on balance, a feature of the road conditions (which, of course, the applicant had a duty to navigate safely) that contributed, at least to some extent, to the occurrence of the collision." 1. The applicant submitted that, from her Honour's exclusion from consideration of the bend: "… it can be inferred that her Honour's determination to do so operated to aggravate the notion of the applicant having allowed his vehicle to 'drift' to the wrong side of the road as being a more serious (and potentially, protracted) period, necessarily due to more serious lack of control exercised over the steering (and general operation) of his vehicle." Ground 2: The learned sentencing judge erred in the characterisation of the objective seriousness of the subject driving 1. With regard to ground 2, the applicant acknowledged there was a considerable overlap in the challenged findings of fact and evaluations relied upon for both grounds. He submitted that the sentencing judge's findings that the matter was "not one of momentary inattention", that the applicable level of moral culpability was "significant" and the individual findings in respect of each count as to their objective seriousness, were not reasonably open to be made, on the evidence. 2. The applicant submitted that the learned sentencing judge erred in concluding, beyond reasonable doubt, that the extent of the applicant's offending driving went beyond a low level of moral culpability for offences of this kind. 3. The applicant submitted that the sentencing judge did not give weight to the absence of certainty as to the period for which he was distracted and/or on the wrong side of the road, and the "deliberate measures taken by him in seeking to ensure that he was operating his vehicle in a safe and appropriate manner". 4. It was submitted that, on the spectrum of case scenarios that typically come within offences against s 52A of the Crimes Act, the circumstances of the applicant's offending conduct could not constitute anything other than an entirely unintentional and spontaneous act. The respondent's submissions 1. In relation to the ground 1, the respondent submitted that although the sentencing judge referred to the people who stopped to render assistance had "potentially" been put at risk and took judicial notice that many people travelled on the Golden Highway, she ultimately found that none of the aggravating factors in Whyte had been made out. Rather, the fact that there were other users on what was a major road was relevant to the broader context of the applicant's failure to keep a proper look out over the 200m of road that preceded the collision. 2. The respondent submitted that the period of inattention was appreciably longer than 0.56 seconds over 15m; that a consideration of all the evidence pertaining to the length of inattention led to a conclusion that it was "appreciably longer". The tyre marks were indicative only of the applicant's evasive action and not necessarily the period over which he was on the wrong side of the road. 3. In any event, the submission is inconsistent with that made by the applicant's counsel at the sentence hearing, extracted at [64] above, that "something happened … for a couple of seconds that in some way caused him to take his eyes off the road". 4. As to the applicant's contention that the evidence did not allow the sentencing judge to conclude that he was distracted for the "entire period" during which the victim's car would have been visible or to find that he did not see the Hyundai at any point in the period over which it would have been visible to him because his eyes were off the road, the respondent submitted that since the Hyundai was visible for 200m, the sentencing judge was entitled to infer that the applicant had failed to keep a proper lookout and manage his car so as to keep it on the correct side of the road, there being no other rational inference available when looking at all of the evidence. 5. The respondent submitted that the fact that the applicant had set the cruise control and operated his phone with Bluetooth does "not operate to counterbalance the rational inference that the applicant failed to keep a proper lookout in the period before the collision". 6. The respondent submitted that the applicant had misunderstood the sentencing judge's finding that she was not persuaded that any issue regarding the slight left-hand curve should be taken into account in determining the seriousness of this matter. The applicant presumed that her Honour had excluded that fact from her assessment of objective seriousness, whereas a reading of that section of the remarks makes clear that she was rejecting the applicant's submission that his apparent lack of advertence to the slight left-hand bend where the collision occurred contributed to the collision. 7. The applicant's concern that in an exchange with counsel the sentencing judge had referred to the bend being "very slight" was submitted to be misplaced, since her Honour did not describe the bend in that way in her remarks on sentence. 8. Accordingly, the respondent contended that none of the matters that the applicant relied upon established a mistake or error of fact. 9. In relation to ground 2, the respondent noted that the assessment of the objective seriousness of an offence is classically within the role of the sentencing judge in finding facts and drawing the inferences from those facts, and that in order for the applicant to succeed, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40, citing Fuller v R [2022] NSWCCA 203 at [80]. 10. The respondent submitted that in fixing the objective seriousness of each offence, the sentencing judge appropriately took into account all the relevant circumstances including the period of time over which the applicant failed to keep a proper lookout on a major regional road. The assessments as to the objective seriousness of the offences were open to be made on the evidence. Anna was a toddler who has been left with a lifelong disability at the upper end of grievous bodily harm, thus warranting the finding in respect of count 4 of above mid-range objective seriousness. Consideration 1. In relation to the ground 1, the applicant relies upon three findings of fact for which he submits there was no proper evidentiary basis. As I understand the sentencing judge's remarks concerning the extent to which others on the road were put at risk, in the passage extracted at [77] above, her Honour was considering factors that alerted a driver upon it at that time to the likelihood of other traffic. That could partly be gauged by the fact that multiple other road users stopped to render assistance shortly after the accident and that it was a major roadway, both factors distinguishing it from a remote country road with scarce traffic and where more than scarce traffic would be unexpected. I take the sentence "the length of the road that was travelled given the speed involved, in my view, was not insignificant", to be a reference by the sentencing judge to the driver travelling at 97kph for the distance that he was on the incorrect side of the road. I do not interpret her Honour's observations as being at odds with, or different to, the evidence in the agreed facts and the applicant's evidence that the traffic was "light". 2. The second factual finding that is challenged by the applicant is what is said to be the sentencing judge's finding that the applicant was unaware of the presence of the Hyundai for all the time that it was visible. The applicant submitted that it may be that the applicant did see the Hyundai at a point earlier than when he realised the need to take evasive action. 3. To my mind, the significance of this concern is questionable, since the Hyundai would not have been potentially visible for long at all. The applicant accepts the sentencing judge's estimate that the Hyundai would have been capable of being seen when it was 200m from the Holden. At 97kph, it would have taken the applicant 7.42 seconds to travel that distance, a calculation with which counsel for the applicant agreed at the hearing of the application. The speed of the Hyundai immediately before the collision is not known, but having regard to the tyre marks and the speed limit, it would seem to have been travelling at a high speed. If it was travelling at the same speed as the Holden, it follows that the collision would have occurred in half that time, that is, about 3.71 seconds after the Hyundai first became visible. 4. In any event, the applicant gave evidence that he recollected seeing the Hyundai immediately before the collision. I do not infer from the passage of his evidence that is extracted at [60] above that he did not know if he had seen it before that time. The clear inference, to my mind, is that he saw it for the first time when he had to take evasive action to try to avoid colliding with it. 5. The applicant also submits in relation to the ground 1 that the sentencing judge apparently found the degree of the bend in the road to be less than the parties agreed it to be in the agreed facts, which was "slight", and erred by disregarding the fact that the collision occurred on a bend when determining the objective seriousness of the offences. 6. In my view, the reference by the sentencing judge in an exchange with counsel to the bend being "very slight" is of no moment. It was a single reference and it is not described with that adjective in the remarks on sentence. 7. In my view, when read in the context of the passage that follows it, the sentencing judge's finding that "any issue regarding the slight left-hand curve in the road" was irrelevant to objective seriousness, in the passage extracted at [78] above, was a reference to the applicant's submission that a possible explanation for the Holden being on the wrong side of the road was because it proceeded in a straight line when the road curved to the left. I interpret her Honour's finding to mean that the explanation, which was speculative, did not mitigate the applicant's culpability. The issue for her Honour's determination on the question of objective seriousness remained whether it was a matter of momentary inattention. 8. In my view, for these reasons, the first ground of appeal is not made out. 9. In relation to ground 2, in my view, the applicant has failed to establish error of the type in House v The King. The sentencing judge's assessments of the applicant's moral culpability and the objective seriousness of the offences, in my view, were within the bounds of reason and reflective of the evidence. 10. As noted at [19] above, an agreed fact was that the Holden's tyre marks showed the offside (driver side) tyre of the Holden to be 1m over the centre line of the roadway at the beginning of the marks, which was the point at which it was first driven evasively, and that the distance between the tyre marks was consistently 1.6m. It follows that, at that point, over half (62 per cent) of the width of the Holden was on the incorrect side of the road, bearing down on the Hyundai driver who was presumably driving at a speed on a single-lane road on a curve and with an unsurfaced edge. Although it is not possible to determine the precise period of time or distance over which the applicant had been on the incorrect side, clearly it was at some point before the commencement of the tyre marks; that is, before the point that he commenced evasive action. The sentencing judge's estimate that it was for "a matter of seconds" is suitably conservative as to what that period of time would have been. 11. In my view, the sentencing judge appropriately found that none of the aggravating factors that are identified in Whyte at [216] was present but nevertheless was entitled to assess the applicant's moral culpability as "significant" and fix the objective seriousness of each offence as she did. 12. In respect of both ground 1 and ground 2, I would grant leave to appeal and dismiss the appeal. 13. R A HULME AJ: I agree with Ierace J. ********** Endnote 1. I have provided pseudonyms to the children, in conformity with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). 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: 21 June 2023