District Court New South Wales Medium Neutral Citation: R v Hennessy [2013] NSWDC 314 Hearing dates: 22 November 2013 Decision date: 22 November 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of a non-parole period of 3 years and a head sentence of 4 years. The offender is disqualified from driving for a period of 5 years S166 Certificate dismissed Catchwords: CRIMNAL LAW - Sentence - Dangerous driving - Heavy vehicle - Distracted whilst driving -Collision with school bus - Death of a child Legislation Cited: Crimes (Administration of Sentences) Act 1999 Cases Cited: R v Jurisic (1998) 45 NSWLR 209 R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. WW v The Queen [2012] NSWCCA 165 Category: Sentence Parties: The Crown Daniel Ronald Hennessy Representation: Mr J Stanhope - The Crown Mr P Harper - The offender Director of Public Prosecutions John Anthony Solicitors File Number(s): 2013/36466 Judgment 1HIS HONOUR: All of us as drivers have a heavy responsibility when we get behind the wheel. Not to mince words about this, all of us have to do what we can to minimise the risks to other road-users because, as drivers, we are quite capable of injuring or killing another human being. We have to obey the rules not only because we will be punished if we do not but because of the awful consequences that often arise. 2Those who drive heavy vehicles have an extra onus placed upon them because often they will walk away physically unscathed from collisions where the consequences to others are catastrophic. We have here a case where a heavy vehicle driver did not follow the rules, and acted in a very dangerous way which caused the death of a much-loved young boy. 3On 10 September 2011 Daniel Hennessy was driving his prime mover. There was no trailer attached but the prime mover is by itself a large and heavy vehicle. He was travelling south intending to go to western Sydney. It was his job to pick up a trailer there and take it elsewhere. He decided that he would detour off the highway in order to avoid traffic build-up around Hexham and Rutherford. That took him to Kelso Street in Singleton. 4The Crown tendered photographs of that street as well as a DVD showing the path that the offender's vehicle took. Kelso Street is a small suburban residential street. It is a back street. As the offender drove along Kelso Street he would have seen houses to either side. He would have seen intersections. He drove through a school zone. This was the sort of street where people were around. This was the sort of street where the driver of a prime mover needed to pay full attention to what he was doing. 5Mr Hennessy did not. He says that he became aware that there was a stop sign up ahead. Despite that, as he approached the stop sign, he says he picked up his mobile phone to look at the time. By the time he had put the phone back down again it was too late. The stop sign was at an intersection with Church Street. Travelling along Church Street apparently in an entirely lawful way was a school bus. By the time Mr Hennessy put his phone down and attempted to stop at the stop sign nothing could be done to prevent a collision between Mr Hennessy's prime mover and the bus. 6There were many children on the bus. One of them, Harry Dunne, died as a result of what Mr Hennessy did. Others on the bus were injured, including Harry's brother Luke. Mr Harper, who appears for Mr Hennessy, agrees that I can take into account the circumstance that, as well as the tragic death of Harry, others on the bus, students and the driver, were also injured. 7The offender has consistently said that the reason he looked at his telephone was to find out the time. It probably does not matter exactly why it was that he looked at his phone but there was a curious aspect about this explanation given in evidence. It will be recalled that I mentioned that the offender drove through a school zone. He was travelling along Kelso Street at about 3.50pm, very close to the time when the school zone would no longer operate. He agreed that when he entered the school zone he checked the time in order to identify whether he needed to travel at forty k.p.h. or whether he could travel slightly faster, 50 kilometres an hour. It was a very short distance between the beginning of the school zone and the intersection with Church Street where the offender says he again looked at his mobile phone in order to identify the time. He could offer no explanation in court as to why he felt it necessary to look at his phone again such a short time later. 8I say it may not matter. That is probably true. Exactly why the offender distracted himself is not terribly important. No one would suggest that he had the slightest justification for distracting himself in any way as he approached a stop sign in a street such as Kelso Street, Singleton. The offender's moral culpability is high, even though his decision to distract himself in whatever manner he did was very brief. 9Too often drivers foolishly distract themselves by sending text messages on mobile phones. Often enough people die as a result, either the driver or others. A case of texting while driving leading to death was that of WW v The Queen [2012] NSWCCA 165 and Mr Harper made reference to that case, pointing out that the sentencing judge had sentenced that offender on the basis that he was distracted for a considerable period of time. Mr Harper's submission was that given that Mr Hennessy distracted himself for but a moment, his moral culpability must be considerably lower than that of the offender in WW. 10I reject that submission. WW was driving along a highway. Mr Hennessy was not. The nature of the street, the fact that he knew there was as stop sign coming up and the nature of the vehicle he was driving all suggest that distracting himself in any way in those circumstances must necessarily involve high moral culpability. 11This case is a salutary lesson about the heavy responsibilities that drivers have, the need to pay attention to the dangerous task we are undertaking and the tragic consequences of a driver allowing himself to be distracted. The consequence of Mr Hennessy's behaviour is that a child has died and he must be punished by going to gaol for a considerable period of time. 12The harm that Mr Hennessy caused is obvious and endless. It is important to acknowledge, consistent with the well-known authorities, that the repercussions of his behaviour have extended on and on and on. 13As well as sentencing for the offence, I must sentence for the offender. Mr Hennessy lives in Queensland. He is supported by his family. References from them and from a work mate attesting to his character were tendered today and I have, of course, read them. 14Mr Hennessy left school at the end of year 10 and began an apprenticeship as a diesel mechanic. He did this for a while before starting work as a truck driver. He was a long-distance truck driver for about ten years before his current charge. He lives at the moment with his de facto partner and her children. After being charged, he has returned to work. At first he was unable to resume work as a truck driver. He could not even get in the cab of a prime mover. Of more recent times he has been able to drive a truck from time to time but not with any great regularity. 15I accept, of course, that Mr Hennessy is remorseful. That is invariably so in cases of this kind. He is deeply remorseful. He intended no harm at all and will bear the consequences of his misbehaviour, perhaps, for the rest of his life. But a person's moral culpability can be high even where the terrible consequences of their actions were unintended, as they were in this case. He clearly has good prospects of rehabilitation but, again, that is almost universally the case when dealing with offences of this kind. 16There is one matter in Mr Hennessy's history that I have not yet mentioned. He has a terrible driving history. Even for one who is on the road as much as he must have been, to have accumulated twenty-six speeding offences in three States is somewhat remarkable. That perhaps shows an attitude towards obeying the road rules which certainly reflects badly upon Mr Hennessy. He is otherwise a man of good character. He has no other offences and has clearly been working hard over the years. 17Attention was, of course, paid to the guideline judgments, both R v Jurisic (1998) 45 NSWLR 209 and R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252. They are useful guides, and I emphasise that word, to the appropriate sentence in this case. It is well known that Jurisic, the very first of the guideline judgments issued by the Court of Criminal Appeal, followed a lengthy series of Crown appeals, usually successful, against the leniency of sentences for what was then called culpable driving. Jurisic, Whyte and subsequent cases, both at first instance and on appeal, reveal a growing awareness of the need to impose significant, even harsh, sentences on those who, like Mr Hennessy, fail to follow the road rules, and who drive dangerously with tragic results. 18Many lives changed through Mr Hennessy's illegal behaviour, including his. I fully accept that one of the things Mr Hennessy must constantly reflect on is a desire to undo what he has done, but that does not mean that he should not also be further punished by a significant sentence from this Court. 19I return to where I started. Driving is a dangerous business and one of the ways that judges attempt to make it safer is through sentences such that I am shortly to impose upon Mr Hennessy, a sentence which may deter others who might one day be tempted to distract themselves whilst behind the wheel of a motor vehicle. Such people should know that if they do and if harm results, they too will be significantly punished. 20It is conceded that nothing less than a fulltime custodial sentence is appropriate. Mr Harper made the submission that I should make a finding of special circumstances in the offender's favour, relying on this being his first time in custody. If it ever was enough that that circumstance justified a finding of special circumstances, it is no longer the case. The other thing that Mr Harper mentioned, the offender's suffering and grieving as a consequence of his misconduct, is not enough to justify a finding that there should be a variation in the normal statutory ratio between non-parole period and head sentence. 21The offender is sentenced to imprisonment. I set a non-parole period of three years to date from today, 22 November 2013. It will expire on 21 November 2016, on which day Mr Hennessy is eligible to be released to parole. I set a head sentence of four years, and disqualify the offender from driving in New South Wales for a period of five years. 22Any other order required, Mr Crown, Mr Harper? 23STANHOPE: Yes, please, your Honour. There's a backup offence which was brought to this Court by a s 166 certificate. 24HIS HONOUR: I will dismiss that. ********** 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: 15 April 2014