R v Wells (No 2) [2016] NSWDC 313

District Court New South Wales

Medium Neutral Citation: R v Wells (No 2) [2016] NSWDC 313 Hearing dates: 16 September 2016 Date of orders: 16 September 2016 Decision date: 16 September 2016 Jurisdiction: Criminal Before: Berman SC DCJ Decision: The offender is referred for assessment as to his suitability to serve his sentence by means of an Intensive Corrections Order Catchwords: CRIMINAL LAW – Sentence – Negligent driving causing death – Breach of Road Rule 38 Legislation Cited: Crimes (Sentencing Procedure) Act Road Rule 38 Cases Cited: Bonsu v R [2009] NSWCCA 316 Category: Sentence Parties: The Crown Ian Jeffrey Wells Representation: Counsel: Mr R Cooley – The Crown Mr M Higgins Solicitors: Director of Public Prosecutions Crown Solicitors Office - Offender File Number(s): 2013/44288

SENTENCE 1. HIS HONOUR: Mrs Katina Mihailidis died on 18 October 2012 because the offender did not want to lose the momentum of the vehicle he was driving. He did not want to have to change down to first gear. He did not want to stop. He did not want to wait the 11 seconds that it would have taken for the car in which Mrs Mihailidis was a passenger to have gone past him. Had he done those things, had he waited the 11 seconds for the car to pass, Mr and Mrs Mihailidis would have made it to their home in Mangrove Mountain in safety. She is now dead as a direct result of the actions of the offender. That 11 seconds was the difference between life and death for Mrs Mihailidis. Of course if he had known what was about to happen he would have waited but it was clearly negligent of him to fail to do so. 2. I am now to sentence him for an offence of negligent driving causing death, a summary offence carrying a maximum penalty of 18 months imprisonment, and an offence of breaching Road Rule 38 by making a U‑turn without giving way to a vehicle, which carries a maximum penalty of a fine of $2,200. 3. He was charged with two offences, dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm, the latter offence relating to grievous bodily harm suffered by Mrs Mihailidis' husband Peter, the driver of the car. He was found 'not guilty' of those offences by a jury. 4. The offences with which I am now dealing appeared on a s 166 certificate. I convicted the offender of those offences. 5. For some reason there was no backup charge relating to Mr Mihailidis' injuries and so despite their severity I must ignore them for the purposes of sentencing the offender. 6. The following description of the relevant facts which have led to today is taken from my judgment of 17 August 2016 when I convicted the offender of these offences. 7. He was a volunteer rural fire fighter with the Kariong brigade of the Rural Fire Service, and indeed, continues to be the Deputy Captain of that brigade. 8. One evening in 2012 he was at his home. He was paged and, together with other RFS members, went to an incident at the Mount White weighbridge station on what was then called the F3 Freeway. It appeared that some concentrated orange juice had been spilt. The offender travelled to the scene of the spillage in an RFS vehicle designated Kariong 1. That vehicle was a Category 1 fire tanker which carried a substantial quantity of water, it was thus heavy, weighed about 13 tonnes, and slow to accelerate. 9. Before the task involving the orange juice spill was completed the offender and another of the RFS personnel at the weighbridge, Paul Barwick, were asked to attend a motor vehicle accident closer to Sydney but also on the F3 Freeway. The offender and Mr Barwick arrived at that incident and performed various duties. 10. Around 10.21 the offender and Mr Barwick were asked to return to the weighbridge station where the incident regarding the spillage of the concentrated orange juice was ongoing. To get back to the weighbridge station the offender, who was driving Kariong 1, needed to turn the tanker around so that it could head north. He thus drove along the F3 southbound until he reached what was called 'U-turn bay 10'. He decided that he would perform a U-turn through that gap in the median divide. There was a sign at the U-turn bay which said "no U-turn" but a supplementary sign positioned underneath said, "Police, RTA, NRMA and emergency vehicles accepted". There was no other traffic heading south so the offender was able to begin his U-turn by moving to the left of the southbound carriageway before turning the steering wheel to the right. He activated the red and blue flashing lights on the top of the tanker and applied full right lock to the steering wheel. He was in second gear. 11. There was some north bound traffic which had gone past the U-turn bay but a Toyota Corolla driven by Mr Mihailidis with his wife Katina in the passenger seat had not. It was approaching the U-turn bay from the south and thus heading north. It was visible to the accused and would have taken about 11 second to pass him. It was initially in lane 3 and it was Mr Wells intention to also turn into lane 3, the lane nearest the centre of the roadway. When the Corolla driven by Mr Mihailidis was about 350 metres south of the U-turn bay he flashed his car's high beam headlights. At about the same time the Corolla moved from lane 3 to lane 2, the centre of the northbound lanes. Both Mr Barwick and the accused noticed this and interpreted this as an indication from the driver of the approaching vehicle that he or she was aware of the presence of the RFS vehicle and, in effect, indicating to the driver of that vehicle that he could complete his U-turn and that he, the driver of the approaching vehicle would give way. 12. As I mentioned before, the RFS tanker was heavy and slow to accelerate, it had remained in second gear as it went through the U-turn bay at walking pace. As the accused told police in his interview conducted early the following morning, it was easier for him to keep the momentum going rather than stop and go back into first gear. As the tanker moved into lane 3 of the northbound carriageway the Corolla also moved back into lane 3. The accused saw this manoeuvre in his review mirrors and so steered the tanker left intending to get out of the way of the Corolla. He had partly entered lane 2 at the time the Corolla collided with the rear left-hand side of the fire tanker. The tanker was moving slowly at the time of the collision, its speed being in the order of 10 to 15 kilometres an hour. After the collision the accused drove the tanker into the breakdown lane. The Corolla was left stationary in lane 3 with its electrical system damaged to the extent that none of its lights operated, it was thus completely unlit. 13. Mrs Mihailidis while perhaps injured in the collision was alive. She opened the passenger door and released her seatbelt. She was in the process of getting out of the car when she was struck by a third vehicle, this, a Mazda driven by another driver who was also travelling northbound. She was driving her Mazda in lane 3. As she approached the scene she looked towards the flashing lights of the RFS tanker to her left and did not see the stationary Corolla until it was too late to avoid colliding with it. It was the collision between the Corolla and the Mazda which caused Mrs Mihailidis' death. 14. Clearly relevant to the gravity of the offences and the objective criminality of the offender's conduct concerns the level of urgency for the offender to get back to the checking station. There was evidence that about 2,000 litres of concentrated orange juice had spilt. It was classified as a chemical spill. Crew attending had to wear breathing apparatus. 15. I was asked, when considering whether the offender was guilty of the charge of negligent driving occasioning death, to infer that the evidence was such that there was a threat of damage to property. As I said earlier, whilst I may have been prepared to infer that fact at the time of Kariong 1's first attendance at the weighbridge station, there is a dearth of evidence as to whether such threat continued at the time when the accused performed the U‑turn. 16. The urgency or, indeed, lack of urgency for the offender to get back to the Mount White checking station is important in assessing his objective criminality. There was no need for him to fail to wait the 11 seconds that I have spoken about earlier, and indeed, probably no need for him to perform a U‑turn in any of the U-turn bays on the F3 at all. 17. In his interview with police conducted in the early hours of the morning after the collision he spoke of having to return to the Mount White checking station to finish tidying up and to pick up the crew. He had also told police that he and other members of the RFS crew had consumed pizza at the weighbridge before he left, bought for them by the owner of the truck which had spilt the concentrated orange juice. There is no reason to doubt his description to police of the reason that he was heading back to the Mount White checking station, so whatever threat there had been to property, by the orange juice spill had abated, and more importantly, there was no urgency in the offender and Mr Barwick getting back to the weighbridge station to assist with tidying up and picking up the crew, there was no emergency, or even urgency, which required the accused to have not waited the 11 seconds which would have allowed him to perform the U-turn in safety and allow Mrs Mihailidis to return to her home alive. 18. In assessing the moral culpability of the offender there are two particular features to which I have had regard. On the one hand and very much in the offender's favour is the nature of his driving. His negligence, as I found earlier, consisted of failing to foresee that by entering the high speed lane of the F3 he presented a threat to oncoming vehicles and that Mr Mihailidis might respond to the threat in the way that he did. On the other hand, and this is not in Mr Wells favour at all, why he did that, why he entered into the fast lane of the F3 was simply to avoid having to stop and start again. There was absolutely no urgency which required him to do what he did. 19. Notwithstanding, a very strong subjective case put on his behalf today, and I will speak about that in some detail soon, I am satisfied that the threshold in s 5 of the Crimes (Sentencing Procedure) Act has been met. 20. Anyone, or any normal person, who has been involved in a motor vehicle collision would be deeply upset where a person has died in that collision. That remains the case whether or not the person perceives himself or herself to have been at fault. I have no doubt, at all, that Mr Wells feels remorse in that sense, deep remorse at having been involved in a collision in which Mrs Mihailidis was killed. He spoke about his change in behaviour as he gave evidence, and other evidence adduced today very much supported that Mr Wells is a changed man as the result of the events of 18 October 2012. But nowhere is there evidence that he has accepted responsibility. Nowhere is there evidence that he regards himself in any way at fault for what has come about. The Crimes (Sentencing Procedure) Act says that I am to take into account as amitigating feature 'remorse' but only where he accepts responsibility. I do not accept that that has been demonstrated by Mr Wells. 21. There is also no doubt that the collision and its results has had a deep and significant impact on him. The psychological report tendered today speaks about consequences for Mr Wells of having been involved in a fatal motor vehicle collision. Despite that, he continues to do much good, even attending fatal motor vehicle collisions on, what is now, the M1 despite the traumatising consequences for him. 22. Mr Wells has remained a member of the Rural Fire Service and continues to do a great deal of good work in the community in that regard. It goes without saying that those living in rural New South Wales benefit greatly from the actions of RFS personnel. Even those who live in urban areas benefit too because the responsibilities of RFS personnel extend far beyond simply putting out bushfires. Mr Wells is a member of the busiest brigade in the Gosford area. One of the references tendered on his behalf today notes that he has performed a 1065 hours of service and responded 860 times. That is a significant contribution of which Mr Wells is entitled to be justifiably proud. 23. Other evidence demonstrates that he is a well-respected member of the Rural Fire Service, that many of his duties involved driving a fire tanker like Kariong 1 without any complaints as to his manner of driving have been made. It goes without saying that Mr Wells is prepared to do dangerous work because it benefits others. As Mr Higgins submitted, it goes also beyond volunteering out of sense of excitement. Mr Wells is responsible for much less exciting duties within the RFS such as training. In particular he now assists in training driving, training RFS drivers and speaks about his experience. As part of that he explains to drivers that they cannot simply rely on the provisions of the Road Rules which exempt the drivers of emergency vehicles to save them from legal consequences such as those which have befallen him. 24. In a sense, I suppose, he is using his experience for good, bringing home to all RFS drivers to whom he speaks a need for them to recognise that they are subject to the laws as much as any other driver is. 25. In this regard, I want to make a comment about one aspect of one of the references tendered today. The author of that reference says this, "This decision will have a negative effect on volunteers overall". If that is somehow a suggestion that volunteer fire fighters should be held to a lesser standard of behaviour than others, that it is an attitude which I immediately reject. Being a volunteer does not give anyone a licence to break the law. 26. The offender has no criminal history. He does have a traffic record which shows a number of traffic offences, including one of negligent driving, albeit in 1997, about 20 years ago. 27. There has been something of a delay in this day arriving. Even though Mr Wells has, as I found, never accepted responsibility for his offending, he has for some time been aware that this day might come, that he might face sentence. As Mr Higgins said, he has had the Sword of Damocles hanging over his head for a number of years. At least part of that delay is not of Mr Wells' making. It appears that committal proceedings of some length were held and it took some time for a decision to be made as to whether Mr Wells would be committed for trial or not. I will take that delay into account in assessing the sentence to impose upon the offender. 28. I must also mention, because it is highly significant, another challenge which Mr Wells and his family now face. Mr Wells' wife has been diagnosed with breast cancer. She has had surgery and is due to commence a significant period of chemotherapy in the near future. She lives at Kariong and will be treated at either Gosford or Wyong Hospital. Although public transport is available, no one would suggest that that is appropriate for a woman undergoing chemotherapy. Her mother lives in Sydney. Mr Wells' parents live on the Central Coast at Gwandalan, and so if they are able and willing, I am sure that will assist by transporting Mr Wells' wife to her chemotherapy sessions. I mention the situation facing Mr Wells' wife and the rest of his family because it is particularly relevant to a period of disqualification which I must impose. 29. There is a three year period of disqualification to be imposed unless I am satisfied that it should be reduced, but it cannot be reduced to less than 12 months unless of course I were to impose a s 10 which is well outside what I consider to be the appropriate outcome in the present matter. 30. The loss of Mr Wells' licence will not only impact on the need for family and friends to step into the breach and assist Mrs Wells to get to her chemotherapy, but it will also at least risk his continuing employment. Since February Mr Wells has been employed under contract with the RFS as a district technical officer. It is a condition of that contract that he needs a driver's licence, so it is quite possible that his contract may be terminated. That will represent, of course, a loss of income to the family. It will make it harder for Mr Wells to obtain alternative employment. 31. The Crown in its submissions emphasised the need to impose a sentence on Mr Wells which will deter others. It is very important that drivers of all vehicles, perhaps particularly drivers of emergency vehicles, understand the responsibilities they have to avoid driving in a way which risks the safety and wellbeing of other road users. 32. The sentence must also reflect, as of course all sentences for the offence of negligent driving occasioning death must, that another human being has died. 33. In Bonsu v R [2009] NSWCCA 316 Justice Howie spoke about the level of sentencing for offences of this type in the Local Court, a role I am effectively playing at the moment. His Honour said; "It seems to me, that these statistics reveal that little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of life." 1. I share his Honour's concern but that does not entitle me to ignore the sentencing statistics which the Crown has provided to me. It is a relatively rare event for a full-time custodial sentence to be imposed upon someone convicted of negligent driving occasioning death. I do not regard the manner of the offender's driving in the present case as requiring that ultimate sanction. 2. I am, however satisfied, particularly in order to bring home to other road users the consequences of negligent driving occasioning death that a sentence of imprisonment is required. That must be less that 18 months because that is the maximum sentence. 3. I am satisfied, also, that it is appropriate, that if suitable, Mr Wells serve that sentence by means of an Intensive Correction's Order. 4. I will therefore adjourn these sentencing proceedings to a future date and order that he be assessed as to his suitability to serve his sentence of imprisonment by means of an Intensive Corrections Order. 5. ADJOURNED TO FRIDAY 2 DECEMBER 2016 FOR SENTENCE