R v Ingram [2007] NSWDC 228

New South Wales District Court

CITATION: R v Ingram [2007] NSWDC 228

HEARING DATE(S): 02/08/07 03/08/07

JUDGMENT DATE: 3 August 2007

JURISDICTION: Criminal

JUDGMENT OF: Conlon SC DCJ

DECISION: CONVICTED. Sentenced to non-parole period of 15 months with an additional term of 15 months. Sentence to be served by way of periodic detention.

CATCHWORDS: Drive manner dangerous - Occasioning death - Guideline Judgment - Moral culpability

LEGISLATION CITED: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)

R v Errington (2005) 157 A Crim R 553 R v Khatter [2000] NSWCCA 32 R v Whyte (2002) 55 NSWLR 252 CASES CITED: Regina v Previtera (1997) 94 A Crim R 76 R v Bollen (1998) 99 A Crim R 510 R v Koosmen (2004) 42 MVR 123 R v Musumeci (unreported 30 October 1997 NSWCCA)

PARTIES: Crown Kane Paul Ingram

FILE NUMBER(S): 05/41/0236

COUNSEL: Mr P Cattini (Crown) Ms A Healey (Accused)

SOLICITORS: Ms J Walsh (Crown)

JUDGMENT

1 HIS HONOUR: The offender Kane Paul Ingram appears for sentence following his plea of guilty to a charge that on 29 May 2005 at Figtree in the state of New South Wales he did drive a motor vehicle, namely Holden Commodore sedan XCK-227 in a manner dangerous to another person or persons whereby the vehicle was involved in an impact as a result of which the death of Robert Cutler was occasioned. The offence is contrary to s 52A(1)(c) of the Crimes Act and carries a maximum penalty of ten years imprisonment.

2 The agreed statements of facts is exhibit A and reads as follows: "On 29 May 2005 Mr Robert Cutler was riding his bicycle south on the Princes Highway at Figtree with Mr Franco De Santes. Both cyclists were riding in lane 1 of the highway being the lane closest to the kerb at a speed as they approached O'Donnell Drive estimated by Mr De Santes at 40 to 45 kilometres per hour. At 7.55am the offender Mr Kane Paul Ingram was driving a Holden Commodore sedan number XCQ-227 north on the Princes Highway at Figtree. As he approached the intersection of the Princes Highway and O'Donnell Drive he made a right hand turn into O'Donnell Drive. The turn was made from lane 2 of the northbound lane of the highway being the centre lane into O'Donnell Drive. It is not known if the offender came to a complete stop or slowed to allow oncoming traffic to pass before he made the turn. There is no suggestion that Mr Ingram attempted to negotiate the right hand turn at an inappropriate speed, and in fact the absence of tyre marks on the roadway and other evidence suggests that he was not required to apply his vehicle's brakes harshly to stop the vehicle. A witness Mr Franco Disenzi was travelling by car south on the highway. Mr Disenzi from the kerbside lane to pass the cyclists and continued travelling south in lane 2, being the centre lane. After passing O'Donnell Drive he checked in his rear view mirror and saw the offender's vehicle make the right hand turn behind his vehicle. There is insufficient information to determine the exact path of travel of Mr Ingram's vehicle as he turned into O'Donnell Drive, or to determine the exact point of impact with the cyclist. However, it appears that Mr Ingram may have affected the turn by 'cutting the corner across the unbroken lines' which were almost completely worn in the centre of the highway. This placed the offender's vehicle in the path of Mr Cutler's bicycle and both have collided before moving into and coming to rest in O'Donnell Drive. The vehicle was stopped in the middle of O'Donnell Drive being partly on the correct left hand side and partly on the incorrect right hand side of the entrance of O'Donnell Drive (I will have more to say about the position of this vehicle in due course). There was no centre line in O'Donnell Drive. As a result of the impact Mr Cutler was thrown from his bicycle. He first hit the bonnet of the vehicle then the windscreen and a pillar of the offender's vehicle. Mr Cutler fell off the driver's side of the vehicle and came to rest beside the front offside tyre. As a result of the impact Mr Cutler received fatal head injuries despite wearing his helmet at the time. Mr Ingram called triple 0 from his mobile and requested an ambulance. He was extremely distraught and distressed. Police and ambulance attended the scene and the offender was subjected to a roadside breath test which was positive for the presence of alcohol. The offender was arrested and taken to Wollongong Police Station where he was tested by way of breath analysis. This returned a positive reading of .115 grams of alcohol per 100 millilitres of blood. The deceased was conveyed to Wollongong Hospital where he was pronounced dead. When spoken to by police at the scene of the collision the offender said 'I turned, I didn't see. I couldn't see because of the sun'. He also said that he had drunk no alcohol that day and had just picked up his car from the club or the pub. He in fact had deliberately left his car at a local hotel on the previous evening and caught taxis to another venue and then home. He told the police that he had been drinking the night before between 6 and 11 and he had five schooners of full strength beer and three Jack Daniels and coke. At approximately 7.55am on the following day, 30 May 2005, police returned to the intersection of the Pacific Highway and O'Donnell Drive. The weather conditions being clear with bright sunlight were similar to those on 29 May 2005. Police took video footage of the roadway from the estimated location where Mr Ingram turned specifically indicating the position of the sun at the time. It is apparent that the sun would have been shining in the offender's line of vision as he faced north waiting to turn east. It is also apparent that the area of the roadway where the cyclists were riding would have been in dark shadow adding to his visibility problems.