New South Wales Court of Criminal Appeal CITATION : Regina v Gardiner [2004] NSWCCA 365 revised - 22/10/2004 HEARING DATE(S) : 6 October 2004 JUDGMENT DATE : 20 October 2004 JUDGMENT OF : Spigelman CJ at 1; Grove J at 2; Smart AJ at 3 DECISION : Leave to appeal against sentence granted; appeal dismissed. CATCHWORDS : Driving prime mover and trailer under the influence of a drug - colliding with vehicle in front, forcing it off the road and thereby killing its driver - need to have regard to combination of circumstances in assessing moral culpability - Jurisic and Whyte not exhaustive - 4 years with 2-1/2 years non-parole period not excessive LEGISLATION CITED : Crimes Act 1900 CASES CITED : R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2003] NSWCCA 343 PARTIES : Regina v Tracey Gardiner FILE NUMBER(S) : CCA 2004/1867 CCAP COUNSEL : (A) T J Golding (C) P Miller SOLICITORS : (A) V Havryliv (C) S Kavanagh LOWER COURT District Court JURISDICTION : LOWER COURT 02/21/13339 FILE NUMBER(S) : LOWER COURT Sorby DCJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 2004/1867 CCAP SPIGELMAN CJ GROVE J SMART AJ Wednesday, 20 October 2004 Tracey Gardiner v Director of Public Prosecutions Judgment 1. SPIGELMAN CJ: I agree with Smart AJ 2. GROVE J: I agree with Smart AJ 3. SMART AJ: Tracey Gardiner seeks leave to appeal against a sentence of imprisonment of 4 years with a non-parole period of 2 years 6 months for the offence of driving whilst under the influence of a drug causing death contrary to s 52A(1)(a) of the Crimes Act 1900. The maximum penalty is 10 years imprisonment. 4. The applicant was the driver of a heavy vehicle, namely a blue Kenilworth prime mover with attached trailer, travelling towards Sydney on the Hume Highway near Pheasant's Nest. As he came around a left hand bend in the Highway he collided with the rear of a Land Rover utility travelling in the same direction and in the same lane, that is, the left hand lane of two lanes heading north. The force of the impact caused the Land Rover to leave the road, killing the driver, David Riley. 5. There was a keenly contested trial in which the prosecution and the defence each called a well qualified and experienced expert witness to give evidence as to what could be deduced from a blood sample taken from the applicant about 7am which, when tested, contained a level of amphetamine of less than 0.02 milligrams per litre and a level of methamphetamine of 0.11 milligrams per litre. There was no dispute as to those readings, the significant one being 0.11 mg per litre of methamphetamine. There was a large measure of agreement between the two experts but some important differences. Dr Perl, the expert called by the Crown also relied on certain observations the police claimed to have made, whereas Professor Starmer, the expert called by the defence, thought that it was unsafe to rely on those observations. 6. At the sentencing hearing the judge declined the Crown's invitation to make some seventeen findings of fact. The judge summarised the incident briefly and noted that the jury in reaching its verdict found beyond reasonable doubt that the applicant was under the influence of the drug methylamphetamine at the time of the impact. 7. Many of the facts were not in dispute. Some emerged from the evidence of Stephen Bryant, who was also driving a heavy semi-trailer north along the Hume Highway, just before the collision. Just north of the twin Mobil Service Stations at Pheasant's Nest Mr Bryant's semi-trailer, which was travelling in the left hand lane between 100 and 106 kph, was overtaken by the applicant's semi-trailer travelling in the right hand lane. Mr Bryant signalled to the applicant that it was safe to move back into the left lane. (Mr Bryant was cross-examined to the effect that it was not safe, but Mr Bryant rejected that suggestion). The applicant acknowledged Mr Bryant's signal and moved into the left hand lane. Mr Riley's utility was travelling north in the left hand lane in front of the applicant's semi-trailer. According to Mr Bryant the tail lights of the utility were switched on. This was challenged in cross-examination. 8. The bull bar of the applicant's semi-trailer collided with the back of the utility, forcing the utility off the Highway to the left at a 45 degree angle. The utility hit the railing on the left hand side of the road and the emergency phone and then "cart-wheeled" end for end through the directional sign on the left side of the road. 9. The applicant's semi-trailer did not appear to Mr Bryant to be stopping so he called upon the applicant to stop, using his CD radio. The applicant pulled his semi-trailer into the right hand breakdown lane and stopped. This was about 300 metres past the scene of the accident. 10. Mr Bryant repelled the suggestion in cross-examination that he was too close to the utility in front of him, that it was irresponsible for him to give an indication to the applicant that it was safe to pull in again to the left hand lane. He also repelled the suggestion that the applicant had applied the brakes to his semi-trailer and that to stitch up the applicant's liability he had fabricated a conversation with the applicant to the effect that the applicant had stated "I didn't see him, I must have dozed off." It is not necessary to pursue these disputes as the undisputed facts are tolerably clear and provide a sufficient outline of what occurred. 11. It was common ground that 0.11 mg per litre of methamphetamine was about double the normal dose when used therapeutically. 12. Dr Perl said: "…based solely on the blood level alone I wouldn't be able to say with any certainty that there was any impairment or any significant affects. It is the combination of observed symptoms along with what is detected in the blood and there is a consistency there that suggest that those symptoms are certainly due to the amphetamine." 13. The symptoms were the observations of the police of the applicant being talkative, anxious, restless, fidgeting, having confused speech and a tremor. Dr Perl said that these were all typical signs of over stimulation of brain functions and that methamphetamine was certainly a stimulant. 14. Dr Perl thought "there were enough symptoms to suggest over stimulation that is a stimulant effects on perception and judgment reaction skills and all of the functions that would be related to driving ability" 15. As to the concentration of methamphetamine in the applicant's blood. Dr Perl said: "It's a significant concentration in terms of what I've seen from many hundred and hundreds of amphetamine and methamphetamine cases … it is certainly a concentration which would commonly be associated with signs of stimulation." 16. She expressed the view that taking the methamphetamine concentration in the blood combined with the symptoms of stimulation she would have expected there to have been impairment of the applicant's driving ability. 17. Dr Perl thought that in both the acute phase and reactive depression phase perceptions of distance and speed would be affected by someone under the influence of methamphetamine. Professor Starmer said that he did not have this information and did not know its source. 18. Professor G A Starmer gave this evidence (at T276): "With the methamphetamines the first effect which is the main effect of the drug is to stimulate and if we talk about driving ability then driving ability is focused and improved and fatigue doesn't occur nearly so quickly. It comes at a cost. Sometimes the driver is more impatient of other road users and there can be an increase in recklessness and risk taking behaviour. When the main effect of the amphetamine wears off then the individual can enter into a phrase (sic) of reactive depression which can cause sleepiness as far as the driver is concerned." 19. Professor Starmer was critical of reliance being placed upon the observations of the police shortly after the collision. They are not clinically qualified. Professor Starmer thought that the symptoms described by the police were very mixed. (I have not set out all the symptoms or observations reported). He had never encountered such a mixture of symptoms personally or read about them. He doubted whether confused speech would be a symptom of the acute phase of the drug because the effect of the amphetamine is to increase alertness. 20. At T282 Professor Starmer gave this evidence: "Q. Is it possible to say, having regard to the symptoms and having regard to the blood reading level, that the drugs must have caused that accident? A. No, I don't think so. Q. Why do you say that? A. Well I very much doubt that the drug would have caused a crash like that or been a significant causal factor in a crash like that if it was in the acute phase." 21. At T287 Professor Starmer agreed that the drugs in the applicant's blood could have been a contributing factor to the accident but the problem was "I couldn't fit it comfortably into either phase of the drug effect and … neither could Dr Perl." 22. Professor Starmer said that in the overall scheme of things the level of concentration of methamphetamine was not very high at all, that he found it "very difficult to come to terms with 'under influence'." He did not think that the applicant's affectation would have been great. It would be dependent on the applicant's drug tolerance amongst other factors. 23. He thought that the perceptions of distance in the acute phase would probably be improved. In the crash (or reactive depressive) phase his inclination was that it would probably be impaired but he had not researched this aspect and was not aware of any literature of this point. 24. Professor Starmer agreed that he could not say that methamphetamine was not a contributing factor to the collision. He added, "The only problem was that I had enormous difficulty in relating what occurred to either of those two phases of the drug effect". He gave this evidence: "Q. But you'd certainly expect an effect on driving? A. Yes, it might be a good effect or --- Q. But certainly it would influence driving? A. Probably." 25. Professor Starmer agreed that with a normal dose he would expect that the effect of taking the drug would have been apparent to the person doing so. This further evidence was given: "Q And if you look together at all of the symptoms as described by Dr Perl, and the blood analysis would you agree that at the time of the collision the accused would have been under the influence of methamphetamine? A. No, because they're not – well in my mind, they're not consistent with anything much." 26. It was apparent from Professor Starmer's evidence that he found the alleged "symptoms" unsatisfactory and pointing in different directions. However, he did agree that the level of methamphetamine found in the applicant's blood stream would probably influence driving and that the effect of taking the drugs would have been apparent to the applicant. The charge involved driving a prime mover with attached trailer under the influence of a drug. 27. By their verdict the jury accepted the general thrust of the evidence of Dr Perl and the reliability of the police observations. 28. The judge had to sentence in a case where the applicant had taken double the normal therapeutic dose of the drugs involved, where he was under the influence of the drugs at the time of the collision, where he was driving a heavy prime mover and attached trailer at a speed of at least 100 kph and he drove into the back of the deceased's Land Rover utility with force sending it off the road hitting signs and fixtures on the side of the road with the driver being killed. 29. It was a very serious offence. Prime movers and trailers, especially when travelling at speed, even within the speed limit, can be lethal and this must be recognised by their drivers. They must take the requisite breaks and rests and appreciate that they must not consume drugs illicitly. 30. The judge approached the task of sentencing upon the stated basis that the two leading authorities binding upon sentence were Jurisic (1998) 45 NSWLR 209 and R v Whyte [2003] NSWCCA 343. Neither was directly applicable to the present case and both are guidelines. The discussion of principle in both is helpful but care must always be taken when the factual background on which the remarks and discussion were based differ significantly from those under consideration in a particular case. 31. The applicant was born on 4 August 1962. At the time of the offence he was a commercial truck driver seeking to buy his own truck. He has been a country and interstate truck driver for many years. His record is limited to traffic offences. They extend from 1981 to January 2002. There are 16 speeding offences, two old negligent driving offences and a variety of other older offences, for example drive contrary to stop sign, disobey traffic lights, not make turn with safety and unlicensed driver. Allowing for the many miles the applicant has driven it is not a bad traffic record. There are no major traffic offences recorded. The materials established that generally he is a person of good character. 32. The applicant has two young children from a previous marriage, to whom he has regular access. His present wife has three children. She and the applicant were expecting a child at the time of the collision. 33. The applicant was unable to return to truck driving. Some three or four weeks after the accident he undertook driving a forklift He was made redundant in January 2003. He has not worked since. On 6 February 2003 he suffered a stroke. He was on a Newstart allowance of $300 per fortnight and had applied for a disability pension. 34. The Psychological Assessment Report of 12 December 2003 of Ms K Watson stated: "On 6th February2003, Mr Gardiner suffered a 'transient ischaemic attack' (Small Stroke) resulting in residual weakness and numbness, left orbital headache, short term memory loss, and obstructive sleep apnoea, the ongoing nature of Symptomatology requiring continuing medical attention and large amounts of prescription medication to date. The Symptomatology suffered as a result of the Stroke is serving to exacerbate Mr Gardiner's psychological distress experienced since the MVA." 35. The report of 12 December 2003 of Dr M Mikhail confirms that the applicant suffered a TIA in February 2003, and continues: "He has been suffering severe headaches and depression since. He still has mild left sided weakness in arm and leg. He has been reviewed by Dr Rail and Dr Swaraj. He is currently on [6 named drugs]. He has been having lots f problems since the MVA. He cannot talk about the accident as it makes him feel so tearful and terribly depressed. Patient has just mentioned a history of leukaemia which was treated three yrs ago. Pt as well stated that he had bowl polyps removed 10 yrs ago. Further investigations have been organised for both conditions and chasing old medical records." 36. Put briefly the applicant had and has medical conditions requiring attention. The Psychologist (K Watson) reported: "Symptomatology currently experienced by Mr Gardiner is directly attributable to the MVA (21/02/02) and is manifested in: Marked Anxiety & Increased Arousal; Recurrent & Intrusive Recollections/Flashbacks; Depressed/Low Mood; Insomnia, Sleeping Disturbances, Recurrent Distressing Nightmares; Psychological Distress & Physiological reactivity on exposure; Marked diminished interest & participation, Reduced motivation; Irritability; Feelings of hopelessness, Powerlessness; Feelings of detachment, Isolation, Estrangement; Emotional Withdrawal/Numbing Sense of foreshortened future; Impaired concentration & short-term recall; and of particular clinical concern, Suicidal Ideation. Psychological difficulty and Symptomatology suffered by Mr Gardiner is 'Chronic and Severe', with onset of Symptomatology immediately following the MVA, continuing to date. The stroke suffered by Mr Gardiner on 06/02/03 has resulted in ongoing physically debilitating Symptomatology, the nature of which has further exacerbated the reactive PSTD Symptomatology and psychological distress experienced since the MVA." 37. In the report of 12 December 2003 of the Probation and parole Officer it is stated: "[The offender] has stated that he had not taken any drug on the night of the offence and believes that it was placed in his coffee at a truck stop by someone unknown. The offender has expressed extreme remorse over the death of the victim. He had considerable difficulty in discussing the offence becoming distressed and crying." 38. The judge commented that the suggestion during the trial that the prisoner's coffee may have been spiked by persons unknown during a truck stop over was obviously not accepted by the jury. The judge accepted that the applicant was remorseful as to the consequences of the impact of his vehicle on 20 February 2003. 39. The judge correctly found special circumstances. These included the applicant's health (physical and mental) and that this was his first time in custody. 40. Appeal Ground A reads: His Honour has imposed a sentence appropriate for an offence involving a "high degree of moral culpability" without finding any facts which would support such a finding. The applicant submitted that the facts of the offence as found by the judge in his remarks on sentence were skeletal; he had found facts that did no more than assert the ingredients of the offence. While the judge's findings were limited it has been possible to deduce from the transcript of the trial what facts were not in dispute. These included the basic facts relating to the collision. Further, to convict the accused the jury must have accepted the general thrust of Dr Perl's evidence and the reliability of the police observations (the symptoms). The judge noted that there was no suggestion of momentary inattention on the part of the applicant. The judge found that the relevant factor was the degree of intoxication or drug abuse. The judge made this important finding, "the prisoner driving his truck with the drug methylamphetamine (sic) present in his blood represents a high degree or moral culpability." That succinctly stated proposition means in the circumstances that the judge found that to drive a heavy prime mover and trailer (with a capacity to have a lethal effect) along a Highway at 100kph on which there were other vehicles when under the influence of methamphetamine (it being present in his blood, involved a high degree of moral culpability. I agree that that is so. 41. In determining the degree of moral culpability, regard is had to all the circumstances. On occasions it is the combination of a number of circumstances which leads to the conclusion that there is a high degree of moral culpability. It is erroneous to take a restrictive view of the circumstances that can lead to the conclusion that there is a high degree of moral culpability. 42. In my opinion when regard is had to the findings involved in the jury's verdict, the findings made by the judge and what is implicit in them and the matters which were either common ground or undisputed on the evidence there are sufficient findings of fact to support the judge's conclusion that there was a high degree of moral culpability on the part of the applicant. Accordingly, Appeal Ground A should be rejected. 43. Appeal Ground B reads: The sentence is manifestly excessive 44. The applicant submitted that the judge had simply adjusted the guidelines emerging from Jurisic and Whyte to accommodate the absence of a plea of guilty. I am not satisfied that the judge has done that. 45. The focus under this ground must be on the length of the sentence and the non-parole period and whether either is manifestly excessive for the criminality involved. 46. The applicant had compelling subjective features, all of which the judge took into account. These included the applicants extensive self punishment, his remorse, his health difficulties, his otherwise good character supported by the references tendered and his absence of convictions of major traffic offences and of any non traffic offences . He was a hard worker who supported his family. He is not likely to re-offend. Compelling subjective features cannot lead to a sentence which does not adequately reflect the objective criminality of the offence proved. 47. Unfortunately, as the Victim Impact statement reveals, the family of Mr Riley has been devastated by his death consequent upon the collision. That is not what the applicant would have wished. 48. The objective criminality of the offence is high and general deterrence is an important aspect of this sentence. This case stands as a solemn warning to any driver of heavy vehicles not to take drugs which have not been prescribed by a medical practitioner. 49. The sentence imposed was not manifestly excessive. Indeed, no lesser sentence is warranted in law. 50. I propose that leave to appeal against sentence be granted but that the appeal against sentence be dismissed. ********** Last Modified: 10/22/2004 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.