REGINA v RYAN [2000] NSWSC 724

New South Wales Supreme Court

CITATION : REGINA v RYAN [2000] NSWSC 724 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 70003/99 HEARING DATE(S) : 3/03/2000, 13,03/2000,14/03/2000, 15/03/2000, 16/03/2000, 17/03/2000, 20/03/2000, 21/03/2000,22/03/2000, 23/03/2000, 24/03/2000,27/03/2000,28/03/2000,29/03/2000,30/03/2000, 31/03/2000, 03/04/2000, 10/04/2000, 19/05/2000, 14/07/2000 JUDGMENT DATE : 14 July 2000

PARTIES : Regina v Michael James Ryan JUDGMENT OF : Adams J at 1

COUNSEL : Mr W Dawe QC (Crown) Mr P Skinner (Accused) SOLICITORS : T A Murphy (Crown) S E O'Connor (DPP) (Accused) CATCHWORDS : Manslaughter - sentence - semi-trailer driver - unwitting amphetamine intoxication - relevance LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Previtera (1997) 94 A Crim R 76 at 85 R v Jurisic (1998) 45 NSWLR 209 esp at 231 DECISION : See paragraphs 31 and 32

Transcript revised THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

ADAMS J

FRIDAY 14 JULY 2000 070003/99 REGINA v MICHAEL JAMES RYAN SENTENCE

1 HIS HONOUR: On 14 March 2000 an indictment was presented against the offender charging him with the murders of Arthur Hwee Siew Wong and Susan Mary Barnes on 18 September 1998 at Strathfield in the State of New South Wales. He was charged in the alternative with driving a motor vehicle dangerously whilst his ability to drive was substantially impaired by being under the influence of a drug and occasioning the death of those two persons. He pleaded not guilty to the charges of murder but guilty to the alternative charges. The Crown did not accept the pleas of guilty in full discharge of the indictment and, accordingly, the offender was put on his trial for murder. On 3 April 2000 the jury, being unable to agree on a verdict, was discharged and the offender remanded in custody pending a fresh trial. On 10 April 2000 the Crown preferred charges of manslaughter in respect of the deaths of Mr Wong and Mrs Barnes to which the offender pleaded guilty. 2 It is unnecessary for present purposes to set out in detail the evidence of the trial. However a brief summary of the material facts is required. Each of the deceased persons was the driver of a motor vehicle moving north in Centenary Drive when it was struck by the semi-trailer then being driven by the offender on the wrong side of the road in a northerly direction. Centenary Drive is a six-lane highway with three lanes going in each direction divided by a median strip a little over a metre wide. A number of witnesses were called as to the speed and course of travel on the road taken by the offender's truck at the material time. The effect of this evidence is that the truck was travelling north in Centenary Drive and was driven across the median strip and was on the wrong side of the highway for about 500 metres, when it struck the two vehicles being driven by the deceased persons, almost immediately thereafter swerving right and coming to a halt, jammed against the side wall of the roadway. It is clear that the offender had not lost control of the truck but intentionally drove it across the median strip and into the path of oncoming vehicles, most of which took successful evasive action. At the time of the accident the offender was severely affected by methamphetamine. In order to place these events in context it is necessary to go back a little. 3 On the Sunday before the accident, the offender had left his home in Victoria to go north via Melbourne. He had been driving the previous week and had rested on the day before although, he said, that as he set out again he was still tired. The offender passed through Sydney arriving in Brisbane on Tuesday 15 September. From there he went to Gympie to collect a load to bring back to Sydney. The offender arrived back in Sydney shortly before 2pm on Wednesday 16 September. 4 The requirements relating to driving, as applicable to the offender, were that in any 24-hour period he could drive only for twelve hours. He was permitted six consecutive driving periods of twelve hours in any seven days or twelve such periods in any fourteen days. Continuous driving of more than five hours required at least two fifteen minute breaks or a thirty minute break at the conclusion of that five hours. It is clear that the offender did not comply with these requirements and that he falsified his log book entries to pretend that he had. 5 The offender arrived at the premises of Valspar (Australia) Corporation Pty Limited (Valspar) at Glendenning, a suburb of Sydney, at about 4.45pm on 16 September 1998 to pick up a load of paint drums to be transported to Hastings in Victoria. Twelve pallets of paint drums were loaded. The offender told Valspar's employee, Mr Dolbell, that he expected to arrive at Hastings at about lunchtime the next day and that he would have to fuel up and sleep before he got too far "down the track". Mr Dolbell said that the offender appeared to know what he was doing, was clean in his appearance and well dressed, alert and in a happy mood. He was able easily to remove the steel gates on the side of the semi-trailer and replace them, pull the curtain backwards and forwards, tie the load down and strap the curtain. The offender had a short rest in the cab of the truck before leaving Valspar and then drove overnight to Melbourne, deposited two loads, had a short rest and some sleep after doing so. The offender picked up another load at Dandenong around 3pm, eventually leaving Melbourne at about 9.30pm. He slept only another hour or so on the journey to Sydney which he reached on the morning on Friday 18 September. At about 8am he was involved in a slight rear end collision in western Sydney. Although in some ways the offender's reaction to this accident was exaggerated and he was unusually upset by it, there is nothing about his behaviour, as such, to indicate that he was unfit to drive at this time. The driver of the motor struck by the offender's truck described his eyes as glazed but in the circumstances I do not regard this as a significant description. 6 After the accident, the offender drove to Parsons Transport depot at Revesby, arriving there about 9pm or so. He rested his head on the steering wheel, possibly falling asleep for a little bit. Mr Colin Worth, who was the Sydney representative of Parsons Transport, the offender's employer, did not notice anything wrong with the offender although he spent some time in his company on this occasion. Mr Worth informed the offender that rather than go to Brisbane as originally planned, he was to pick up a load from Valspar and Daltons Packaging (Daltons) for delivery in Melbourne on Monday. The offender told him that this was good because he could have a night off and do some washing, having run out of clean clothes. The offender said in his evidence, that he had been taking methamphetamine over the week. It was in a powdered form and he took what he described as "a small amount at the end of a spoon" to stir into his coffee. 7 The offender arrived at Valspar about midday. He said that he was feeling both exhausted and sleepy. As I have mentioned, the last time the offender had slept was for about an hour on the afternoon of the previous day. He was now, I think, in what Dr Perl described as the withdrawal stage of taking amphetamines and his fatigue was beginning to set in. From Dr Perl's evidence to which I will later refer, I think it likely that the offender's fatigue was substantial at this time and that such effective functioning as he had earlier shown was the result of the stimulant effect of the amphetamines. Mr Dolbell said that the offender was uncoordinated and much slower than he had been two days before. He seemed very tired, he had difficulty ending his sentences, his eyes were glazed and bloodshot and his clothes were dirty. Mr Dolbell said that the offender had difficulty handling the gates on the trailer, that he kept stopping and resting his head against the trailer before performing each task and stumbled and dragged his feet, walking very slowly. It is obvious that the offender was close to the end of his tether. There can be no doubt that he was aware of this also. Be that as it may, after taking on his load, he left Valspar en route for Daltons. He stopped on the way at a takeaway store. He said that he drank a bottle of water and relaxed because he was feeling dizzy "like I was going to pass out". He thought that it is possible that he fell asleep for some time but he was unsure about this. 8 At 3pm, the offender rang Mr Worth to say that he was about to load at Daltons. A forklift driver employed by Daltons, Mr Gerrity, gave evidence about loading the offender's truck on this occasion. He said that the offender was acting strangely: he mumbled as he walked around, with his head down, sometimes shaking his head; the items were loaded unevenly; he was slow and unable even to throw the restraining ropes over the load after three or perhaps more attempts; his eyes were bloodshot and his clothes were dirty. The offender had telephoned his wife at about 3.30pm, probably when he first arrived at Daltons. Amongst other things, he told her that he was tired, he sounded upset and agitated and said he had been dismissed because of the accident that had occurred earlier that morning. This was obviously an over reaction. When his wife attempted to reason with him he hung up. The offender rang back at about 5pm and raised the accident once more saying, in effect, that he had lost his job over it. Again, he hung up on his wife. She rang him back. There was a brief exchange and Mrs Ryan hung up. 9 Although the evidence is uncertain about this, it seems likely that the loading at Daltons was finished by about 5pm. At about 5.30pm the offender telephoned a Ms Cox, whom he had known for some little time and with whom he had often spoken on the phone. Their telephone conversation was very lengthy, indeed, the records shown that it went for 73 minutes. Amongst other things, the offender told Ms Cox that he was tired, that he had been interstate without sufficient rest, that he was dirty and needed to sleep. He told her that he had hit the back of a car because he was tired and nodded off. This was a reference, I think, to the accident at 8 o'clock in the morning. Despite his tiredness, the offender told Ms Cox that, if he had time, he would come to a club where Ms Cox and her friends had planned a dinner, and meet them. Ms Cox was sure that, at this time, the offender was driving his truck, since she could hear the traffic and the sound of the truck moving. He said that he intended to go to a hotel at Colyton, get a room and clean up and would come up to the club after dinner. 10 Having regard to the evidence of the witnesses who saw him at Valspar and Daltons, I am satisfied that the offender could only have had a conversation of this kind, when nothing unusual was noted by Ms Cox, and think that he would be able to go on to a celebration after a clean up and a meal, if he had taken some methamphetamine to overcome his physical exhaustion. At about 7.30pm or thereabouts, the offender telephoned his wife once more. She said he was agitated and talking fast. He said that he intended to leave her, in effect, because he had lost his employment. It was very shortly after this that the accident occurred. 11 After the accident, the offender stayed in the cabin of the truck until he was, in effect, taken out by rescue workers at the scene. He was uninjured. It seems likely from the evidence of witnesses of his behaviour before he was removed, that the offender was in the throes of amphetamine intoxication. I accept that he knew that he had collided with two oncoming vehicles when he was going at about 80 kilometres an hour. He knew that he had, at the least, caused very serious injuries, possibly deaths. One of the eye witnesses to the accident came up to him and told him to get out of the truck because he had killed two people, but the offender refused, shouting to him to get away. He seemed to think that the drums of chemical material that he had loaded from Valspar were dangerous. Certainly, it was highly flammable. He was described as appearing very agitated. He yelled to one witness who asked him for the dangerous goods' paperwork, "Fuck off. Fuck everybody else off. I've killed enough fucking people as it is at the moment...it's going to fuckin' blow". This kind of thing was repeated a number of times. The offender said that he wanted to stay where he was, adding on a number of occasions, "It's going to blow". 12 I am of the view that, at this time, the offender was aware that he was responsible for the deaths of two people and that he had intense feelings of guilt and, perhaps, despair, which were considerably intensified by the methamphetamine intoxication. I think it is likely that, in fact, he did want to die. When the offender was removed from the cabin, he was restrained onto a stretcher and taken to hospital. As he was being transported in the ambulance, he was at sometimes coherent and at other times incoherent and babbling. Constable John Bamford, who attended at the scene and went to the hospital, following the ambulance, made a note shortly after of statements by the offender when Dr Dwyer began to examine him. His evidence was that the offender said - "I have had it with everyone so I crossed over the road. You should have seen them. They were flashing the lights, blowing their horns, they were scared. The first one I hit he bounced off, but the other two I got them. I lined them up right. I killed them. I know I did and I am glad. I wanted to and now I have. I gave her everything she had." A short time later the offender said - "I need my night bag, it's got my stuff in it, don't let the police have it. They will steal my stuff." This was said before he was given any sedatives.