District Court New South Wales Medium Neutral Citation: R v CLOUT [2017] NSWDC 114 Hearing dates: March 2017 Decision date: 28 March 2017 Jurisdiction: Criminal Before: Judge S Norrish QC Decision: Negligent driving cause death: s 9 Crimes (Sentencing Procedure) Act 1999: good behaviour bond for a period of two years from 28 March 2017. Negligent driving causing death: s 9 Crimes (Sentencing Procedure) Act 1999: good behaviour bond for a period of three years from today. Disqualified from holding a motor vehicle driver's licence for 15 months from 28 March 2017. Catchwords: CRIMINAL – Sentence, negligent driving causing death - after trial s167 certificate. Legislation Cited: Road Transport Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986. Cases Cited: R v Mauger [2012] NSWCCA 51 Category: Sentence Parties: Regina Peter James Clout - Offender Representation: Counsel: Mr McColm – Crown Ms Bashir SC - Offender Solicitors: Director of Public Prosecutions - Crown Mr Maksisi - Offender File Number(s): 2015/202098 SENTENCE 1. HIS HONOUR: Peter Clout appears today for sentence in respect of two offences contrary to s 117(1) Road Transport Act 2013. 2. These two offences were matters that were brought to the Court on a s 166 Certificate (Criminal Procedure Act 1986) and are being dealt with pursuant to s 167 of that Act. This Court, the District Court of New South Wales, has jurisdiction in particular circumstances to deal with matters that otherwise would be dealt with in the Magistrate's Court or the Local Court. 3. The reason the two matters with which I am now concerned are before me is that Mr Clout was tried a fortnight ago, perhaps longer, at the Wagga District Court in respect of two counts of driving in a manner dangerous to other persons on 25 January 2015 at Coolac in the State of New South Wales whereby a vehicle in which he was driving was driven in a manner dangerous resulting in the deaths, from the impact between his motor vehicle and a motorcycle, of Peter Black and Sandra Black. Those two counts were brought contrary to s 52A (1)(c) Crimes Act 1900. 4. The accused was found not guilty by the jury in the trial, however, the matter had on its committal to the District Court attached to it the certificate to which I referred. The two charges on the s 166 Certificate were respectively described as sequence 3 and sequence 4 of the matters before the Local Court originally. They each alleged that the accused at Coolac on 25 January 2015 negligently drove a motor vehicle to whit utility PC 149 upon a road, Muttama Road Coolac, occasioning the death in relation to sequence 3 of Mr Black and in relation to sequence 4 the death of Mrs Black. 5. I agreed to deal with the matters in the District Court. It was open to me to me to remit the matters back to the Local Court, but that would have meant further delay and expense to the community and other interested parties. I bear in mind of course that I had the opportunity to preside over the trial at which there was a great deal of evidence in a range of ways in relation to a number of issues requiring consideration by the jury, which are relevant to the matters with which I am now concerned. 6. The maximum penalty for each of the offences with which the defendant is charged is 30 penalty units or imprisonment for 18 months or both in the case of a "first offence". Each of these offences occurring at the same time relevantly are a "first offence". I was informed by the Crown, and I accept, that there is a minimum period of disqualification of 12 months upon conviction, that is, disqualification from holding a motor vehicle driver's licence and there is what is described as "automatic" period of disqualification. 7. The offender, Mr Clout, was born on 28 January 1955. The collision causing the death of the two deceased occurred three days before he turned 60 years of age. He was a man without any criminal convictions and had no traffic record. As I understand it he had been licensed since his late teens. The defendant pleaded guilty to the two charges before me last Friday week. I heard submissions and received evidence on the sentence. I received the evidence of the trial as evidence on the plea. One of the difficulties of remitting the matter back to the Local Court would have been the fact finding exercise required of a Magistrate who would not have been apprised of all relevant matters. 8. Unfortunately, although we got started in the sentence proceedings sometime after 12.30, I was presiding over a child sexual assault trial. I had a jury on verdict in relation to a large number of counts and every time we tried to get the matter moving along we were interrupted by various questions from the jury and ultimately verdicts in relation to all but one of the counts in the indictment. By the time submissions concluded, just after 4.15pm, it was too late, bearing in mind it was my last day at the Wagga sittings, to pronounce judgment. I indicated on the day, and I indicate again, that if I had had some short time, even an hour or an hour and half or two hours, to consider the matters of which I was already aware and the additional matters, I would have delivered judgment on the spot to deal with the matter expeditiously. 9. I am joined in these sittings today via AVL, not only by the presence of the defendant, by members of the family of the two deceased who have travelled to Wagga Wagga, some from beyond Cootamundra, but others from the Cootamundra area where the two deceased were resident and were deeply connected as the victim impact statements made clear. 10. In relation to the issue of the timing of the pleas of guilty, I accept that the pleas of guilty were entered at the "first reasonable opportunity". The primary charges brought against the accused from the beginning were the offences of dangerous driving causing death. The two charges with which I am concerned were regarded as "backup charges" and it was clear to me at the call-over that the offender had offered to plead guilty to these two charges on the basis, as I would understand it, that the indictable offences were withdrawn. The Crown prosecuted the trial quite properly and the jury quite properly returned the verdicts it did on the evidence available to it. 11. As I said the matter proceeds on the basis of the evidence that was available at trial plus some additional evidence on the plea. I do not propose to review the evidence at trial in detail or seek to in a dilated way expand upon some conflicts in the evidence, particularly in respect of the "expert evidence" that was relied upon by both parties to varying degrees. The non expert evidence was as I understood it almost without conflict. That is, the evidence of the civilians who attended upon the scene, the police officer, the investigating police officer, as well as evidence relating to the character of the defendant. 12. The defendant gave evidence at the trial consistent with the account he had given to the police on the day of the collision, having been taken initially to Gundagai for mandatory testing before being interviewed as I understand it at the Cootamundra Police Station. I will come back to the evidence that he gave shortly. 13. The Crown case for driving in a manner dangerous, as it opened its case, was that the accused failed to keep a proper lookout. In this regard the Crown relied upon admissions made by the accused shortly after the collision in his interview and also in his evidence at trial from which he never wavered that at the point of collision or immediately before the collision he did not see the motorcycle upon which Mr Black was riding and his wife was a pillion passenger until a very very short period of time it would appear on the calculations available to me less than a second before the impact occurred. 14. At the time of the collision the defendant was, and remains, a farmer living on the Muttama Road, approximately seven and a half kilometres from the township of Coolac. Coolac is a township that is now by-passed by the Hume Freeway, but is adjacent to the Hume Freeway and a road from Coolac runs through the hamlet of Muttama to the town of Cootamundra. 15. The defendant's farm is jointly owned, as I understand it, by the offender and his wife. The homestead and the bulk of the property as I understand it is on the western side of what is called the Muttama Road which links the Hume Highway and the township of Cootamundra. The defendant had cattle on a block of land on the eastern side of the road, assuming for the moment that the relevant portion of the road with which we are now concerned, Muttama Road, runs in a roughly north-west, south-easterly direction. It is referred to in the evidence as running in a "northerly direction." 16. The gateway to get to the land where the defendant had cattle on the eastern side of the Muttama Road; that is, on the opposite side from where his farmhouse was, is actually a gateway to what is called a Travelling Stock Route. From the gateway of the defendant's property to the gateway to the Travelling Stock Route is a distance of approximately 100 metres. The two blocks of land, if I might call them that, the defendant's primary property and the Travelling Stock Route entrance, are guarded by gates that need to be opened. 17. Sometime around about 10.25am Mr Clout with his father, who at the time was aged 82, left their property to drive along the Muttama Road, approximately 100 metres perhaps slightly less, to turn right into the driveway that led to the Travelling Stock Route. This was a Sunday; it was the day before Australia Day. Neither man had been drinking alcohol, nor had they ingested any drugs of any type. They were travelling in a white Nissan utility that had, as I understand it, had a tip tray; it was a working vehicle. It was essentially unloaded, apart from tools, and one of the two tanks of the vehicle contained diesel fuel. It was a working vehicle but it was in sound mechanical condition, and subsequent vehicle examination showed no aspect of the condition of the car that contributed to the impact. 18. At the time of driving the car the defendant was wearing glasses. The car radio was not on, or certainly was not a distraction; neither man was smoking cigarettes, in fact as I understand it they were both non-smokers; nor was either man distracted by mobile phones or any other form of electronic device. They may have been talking to one another in the brief time that it would have taken to drive the distance from one gate to the other but there is no clear recollection of that and I am satisfied that neither man was distracted. 19. The father of the defendant opened and closed the gate to Mr Clout's property; the defendant was driving the vehicle. He turned left onto Muttama Road to drive in that northerly direction, or north-westerly direction, to make the right hand turn slightly short of 100 metres into the driveway, to the gate that led to the TSR. All gates at relevant times were closed, therefore the defendant had to drive out of his driveway, stop to pick up his father, drive up a slight incline, turn left, and drive along Muttama Road before turning right, as I have said, and then stop again in order for the gateway to the TSR to be opened. 20. I have had not only the advantage of seeing the video recording that was made by the Highway Patrol car that promptly arrived at the scene, probably within ten minutes of the collision, but I have actually seen another device which was not admitted into evidence but which showed the terrain from different perspectives; unfortunately not particularly relevant to the key issues the jury had to decide. 21. On the Friday night before the trial, having sat in Wagga the previous week, on my way to Canberra for a conference, I actually drove along the Muttama Road, with which I am familiar having friends who live on the road closer to the township of Cootamundra, and attended the site with the aid of some photographs that were provided to me by the Crown. 22. The defendant said in his interview and in his evidence that he believed that he drove no faster than 40 kilometres per hour at any time between the two gateways up until the time of the collision. He would have obviously been driving slower as he left his own driveway and gathered some speed but there is no reason to reject his version of events. It is entirely consistent with the character of the vehicle he was driving and the purpose of his travel. He was in no rush, and of course the very short distance that he was to cover. He was negotiating the right hand turn at the time of the collision, I am satisfied that he indicated his turn. He did not see the motorcycle until it was. 20 metres or so away, perhaps less. That is a rough estimate and must be by definition, given the circumstances in which the collision occurred. 23. Mr and Mrs Black were travelling on the motorcycle towards Coolac and the area of the collision was clearly on the western side of the unbroken line which divided the two lane carriageway. The speed limit at the area of the collision was 100 kilometres per hour. There was an advisory sign indicating an advisory speed of 85 kilometres per hour over 200 metres to the north of where the general area of the collision occurred. 24. The Crown called an expert in motor vehicle accident reconstruction. That expert in his evidence-in-chief and in cross-examination commented upon another acknowledged expert's opinions contained in a report that had been commissioned by the representatives of the defence. I had the opportunity of reading the various reports before the trial for reasons associated with the legal issues to be determined, but I concentrate in my findings of fact upon the evidence at the trial. 25. The opinions that were before the jury in the evidence of the Crown's expert and in his commentary upon the opinions of the defence expert were largely concerned with two major issues. The first issue was the important issue of where was the "point of impact" or to better express, the "area of impact." The point of impact in my view on the basis of the evidence at the trial in this matter cannot be, with confidence, identified to an area of precise position on the road. The other major issue was the hypothesised speed of the motorcycle before the application of the brakes by the rider, which clearly must have occurred given that there was a distinctive tyre mark - I will call it a brake mark, or a "skid mark", although there is no clear evidence that the motorcycle actually "skidded" - which was 16.4 metres in length. It ran on the western side of the unbroken lines in almost a straight line with some slight curvature to an end. Then some 5 metres beyond there was the stationary vehicle driven by the accused after the collision. There was particular damage to the road largely caused by the resultant fire that a number of witnesses gave evidence of and of which the defendant spoke. 26. Another related matter was an estimated speed of the motorcycle at impact. It must be said, as I drew the jury's attention in the summing up, that the expert opinion of the Crown's expert and to some extent infecting the opinions of the expert retained by the defence, the "opinion" was regarded by the Crown's expert himself as something of an "inexact" exercise. There were many unknowns, and in fact as it transpired, a number of his original opinions were based upon factual assumptions that were entirely false or misleading; not that this was deliberately done or anything of the sort. The Crown's expert had never attended the scene of the collision and the Crime Scene Officer's observations, whilst useful, may not have been entirely reliable in a range of ways. For a start he mismeasured the length of the tyre mark on the road. 27. Of course arising out of all of this given the inability in the circumstances for the defendant to cast light on the movement of the motor cycle beyond the very brief time that it was within his view, there were a number of unanswered questions such as the speed of the bike before the brakes were heavily applied. Whether the motor cyclist had applied the brakes lightly before the braking manoeuvre that gave rise to the tyre marks on the road and whether the motor cyclist had seen the defendant's car and dropped down a gear to allow the engine itself to reduce speed. These are matters of complete speculation. 28. The line of travel of the motor cycle, as I said earlier, after heavy application of the brakes, was largely straight and then came to an abrupt end. There were no skid marks left by the utility, no evidence of heavy braking. It is clear on the physical evidence, taking into account as far as I can any relevant expert opinion, that the utility was stopped by the impact and it would seem not only stopped but rotated in an anti-clockwise direction and was pushed back some short distance. 29. As I said, the point of impact was a highly contentious matter. There was a tyre mark on the road that was clearly left on the photographic evidence by a tyre that had mud on it or a considerable amount of dust. This particular tyre mark in my view was completely irrelevant to the circumstances of the accident and that was made clear when the Crime Scene officer admitted that there had been no attempt to compare tyre pattern. There did not seem to be any evidence of any reason for the tyres of the utility to have left a dirt mark of the character that it was seen. Any water that was found nearby was as a result of water that came from the attempt to extinguish the fire after the collision had occurred. 30. The various views as to the "point of impact", or better expressed as "area of impact", was that it was on the vicinity of damage to the roadway in part caused by extreme heat and some digging up of the bitumen, particularly an area that the Crime Scene officer described as a "gouge mark". One of the difficulties of course with identifying that as a "point of impact" is that whilst a gouge mark may be consistent with a point of impact there are many variables that may cause damage to the roadway once two vehicles have impacted. 31. It may be consistent with part of one or of the other "vehicles" digging into the road but of course what movement occurs immediately after collision. What part of a particular vehicle may come into contact with the road may be difficult to identify. In this particular matter whilst there was some suggestion that part of the undercarriage of the motor cycle may have caused the gouge mark. There was in my view evidence to suggest that what was thought to be damage from the impact to the road was in fact damage from the considerable fire that occurred. 32. One other matter about the gouge mark, as it was described by the Crime Scene officer, was that the expert that was retained by the Crown did not on examination of the photographs, admittedly not having the same benefit of actually viewing the scene as did the Crime Scene officer, regard it as a "gouge mark". 33. The alternative view was that the area of impact was approximately a bike length from the end of the skid mark. The abrupt ending of the skid mark and the carriage of the bike into the side of the car, the position of the car when it came to rest and of course the resultant fire and the damage it caused to the road in the area where the motor cycle and the car came to rest, make the area of impact as hypothesised by the defence expert more likely in my view. One of the aspects of the Crown's expert that needs to be considered, as I pointed out earlier, was that the Crown's expert did not know the correct weight of the accused's vehicle, a matter that could have easily been understood by him simply by getting registration details of the vehicle. 34. In any event the range of speeds hypothesised by the two experts for the speed of the motor cycle at the commencement of heavy braking was either, 93 kilometres per hour, as I understood it on the part of the Crown's expert, and 113 kilometres per hour on the part of the expert retained by the defence. The Crown's expert accepted that if certain hypotheses were established such as the area of impact and other matters the speed estimated by the defence expert was more likely. 35. The speed of course, as I said, of the motor cycle 20 to 30 metres before the heavy braking we do not know. Obviously the impact was very heavy indeed and I do not propose to go into the detail of the physical evidence of that. It would be distressing for the family that are viewing these proceedings. But the resultant impact which occurred occurred at the rear of or just behind the passenger door. The bike at one point was, as I understand it, imbedded in the utility and the deceased rider was attached to the bike. Mrs Black was flung from the motor cycle some distance away. Another matter taken into account in endeavouring to estimate the course of the vehicles both at impact and subsequent to impact. 36. The Crown's expert calculated the speed of the motor cycle at collision at 30 kilometres per hour. He arrived at this figure in circumstances where, as I said, he had miscalculated a number of significant matters such as the weight of the utility by almost 30%. There are, to be fairly said, other aspects of the factual assumptions that he admitted were subsequently proven to be inaccurate. In fact he prepared a supplementary statement closer to the trial, within as I understand it a few weeks of the trial commencing, to correct some of the matters that he had formerly understood to be the case. 37. The motor vehicle driven by the accused would have been travelling less than 40 kilometres per hour, perhaps no more than 20 kilometres per hour, in order to negotiate the turn and also to pull up shortly after pulling off the roadway to enable someone to get out and open the gate. If the area of impact or "point of impact" was approximately a bike length from the end of the skid mark, then the physical evidence suggests, consistent with something that was said by the defendant's father about feeling the car move backwards given that it is agreed between the experts that the utility undertook some sort of anti-clockwise movement, that the motor vehicle was moved back something up to 2 metres and sidewise by at least a metre. 38. With regard to the estimate of the speed at impact by the expert the physical evidence seems to be largely inconsistent with that estimate, which I approach with considerable circumspection given the concessions made by the Crown's expert about matters or facts that he misunderstood. 39. The defendant, as I said, was interviewed by the police that same day after he had been taken off for mandatory testing. He told the police that he had a clear view of the road, conditions were clear, the road was dry, there is no suggestion of sun being in his eyes, he was paying attention to what he was doing, he was not distracted and it was after he commenced the right-hand turn he saw the motor cycle to his left in the distance that I earlier gave. He gave evidence to the same effect as his interview. He was closely cross-examined by the learned Crown Prosecutor, particularly in relation to the crucial matter and that is what he was actually doing when he turned right. Of course, if he turned right and was looking to the right before the turn and maintained his view to the right throughout the turn without looking back towards the oncoming traffic, then for some seconds he would not have had his eyes looking ahead. 40. The defendant did not accept that that was the case. There was no suggestion of speed. But the reason for not seeing the motor cycle is on his part unexplained and not seeing the motor cycle of course until it was too late to react in any way as the physical evidence establishes. 41. On the calculations that I have had in the trial and in further material provided to the Court, the time for the defendant to see the motor cycle making assumptions about the travel of the motor cycle from 85 kilometres per hour upwards was something in the most "generous" understanding of the evidence was a period of approximately 8 seconds or thereabouts at the most. However, given the course of the road ahead, the topography of the road, just assuming for the moment that the motor cycle was travelling on the speed limit, the time would have been less for the purposes of observing the motor cycle oncoming when directly within the field of vision. It is to be borne in mind of course in the context of understanding that all motorists have a duty to be careful to other vehicles whether they be motor cycles, pushbikes, large vehicles or not, that a motor cycle is not as easily seen as a larger vehicle. 42. So far as the opportunity for the accused to look straight ahead before the road started to bend on my understanding of the surveyed plan, which was provided to the Court, acting upon the scale, the only reliable scale being the large survey which was actually tendered and which I have examined, the straight ahead view before the first left-hand bend occurred although it is a slight bend is approximately 64 metres perhaps slightly greater. 43. The road bends to the left to the north in a manner, as the photograph showed but the survey plan doesn't, before eventually some distance over 200 metres beyond turning right and out of sight. 44. It would appear having regard to the physical evidence and understanding that the speed of the motorcycle could have been between 113 kilometres per hour and 93 kilometres per hour at one point, that in reality the opportunity for the defendant to have seen the motorcycle ultimately may have been a matter of seconds. Clearly it was a matter of seconds, and perhaps only a matter of few seconds. The other matter to bear in mind in this case is that the utility, even on the minimum speed estimated as to the course of the motorcycles travels, was travelling at one seventh of the speed of the motor cycle. As I said earlier the tyre marks were almost entirely straight, about 1.3 to 1.4 metres to the west of the eastern fog line. 45. The motorcycle did not appear to deviate its line substantially. The motorcycle careered into the utility as I said, at the rear of, or just behind, the passenger's door. The physical evidence is consistent with the motorcycle rider either not seeing the utility in his path until it was too late, turning in effect in front of him, or seeing the utility in front of him but misjudging the much slower speed of the car, expecting that it would pass in front of him and then too late applying the brakes to avoid a collision. These are matters of speculation to some extent but appear to be reasonably possible scenarios. 46. Of course it is not in any way a case of blaming the deceased. But the extent to which any other error played a part in relation to the collision is impossible to identify. There is one thing clear though, the rider had little time to correct his course and ultimately the driver when he did see the motorcycle had little time to react. 47. So far as his evidence is concerned I accept the defendant was a truthful witness. It is clear the jury did so although I am not sentencing the defendant after trial. It is not a question of making findings of fact consistent with the verdict. The jury found him not guilty because they were not satisfied beyond reasonable doubt he was driving in a manner dangerous. 48. The defendant's evidence was unshaken in cross-examination and consistent with his earlier accounts which he gave that day when I am sure that he was distressed. 49. The Highway Patrol video footage and the testimony of the people on the scene, within seconds or minutes, confirms the attempts by the defendant to quell the fire, the courage he showed without being able to wear glasses, he lost his glasses immediately after the impact getting out of his own vehicle, to retrieve the body of the deceased rider and then, bearing in mind he was Deputy Captain of the local Rural Fire Service, acting promptly to contact a man at Coolac to bring the fire truck for assistance, then endeavouring actively to quell the fire. Firstly with a fire extinguisher and then with the hoses that were taken off the truck both by he and his colleague. 50. I accept both from the video evidence and the oral evidence of the witnesses, without even having to rely upon the defendant, that the offender after the event did all that he could in the circumstances with which he was confronted. 51. The pillion passenger, Mrs Black, was very seriously injured and although I understand from the evidence she was alive for some short time after the event she died at the scene as the grim photographs show, when police and ambulance had well and truly arrived and conducted their examinations. 52. So far as his act of endeavouring to retrieve the deceased rider and also endeavouring to quell the fire, in my view consistent with what he said in his interview and everything that he has done since, those actions were considerable acts of what I regard as instantaneous contrition. This is, in my view, consistent with his character. The evidence at trial showed that he was a community minded person. He was a sober person. He was a responsible person. He was willing to help his neighbours around the district and was held in high regard by those people. In other words, the evidence showed that before this event the offender was a man who led a blameless life. He was a selfless man. One of the witnesses described him as the sort of person who would "give the shirt off his back". 53. As I said, the defendant had no prior convictions and no traffic matters in the context of being a man close to 60 years of age. I accept he is genuinely contrite from the outset and cooperative with the investigators at all times. His car was roadworthy. I accept that his own self-identified moral responsibility for his conduct has been a course of great anguish for him. It is clear, on the evidence at the trial and the evidence before me on sentence, that in pleading not guilty and taking a course that he was fully entitled to take and justified in the context of the verdict, he has not relieved himself of what he identifies of course as his moral responsibility, putting aside any legal responsibility, for what he has done. 54. Of course the sequelae of these events have imposed a tremendous burden upon the family of the deceased. I have listened with interest the reading of the victim impact statements and read them. So far as the relevant material within them is concerned there is clearly a great deal of continuing intensity of feeling and obviously grief and sadness at the deaths of the two deceased persons who were highly respected and well regarded within their communities. 55. The two deceased had three adult children, as I understand it in their 20s, and as I said they were well respected within the community and their loss has come in such sudden and unexpected fashion that the hole in the lives of immediate family, children, siblings and close friends has been great and difficult to understand. The two deceased were going about their business doing what they enjoyed doing, as I understand it on a reasonably regular basis, on a Sunday on a long weekend, having a "run" on the motorcycle on a bright Sunday morning when they would in the circumstances least expect any sort of accident to unfold. The feelings of the family through the victim impact statements revealed a great bereavement that, as I said, continue. 56. Of course particular members of the family blame the defendant for the circumstances. It is correct, on the basis of his pleas of guilty and just understanding the matter from his perspective, that there is both a legal and moral responsibility that he bears. But, of course, in the context of the sentencing offenders in relation to matters relating to criminal conduct, there are degrees of responsibility. This is precisely what I was required to direct the jury about, in the context of dealing with the issue of driving in a manner dangerous in circumstances where the Crown seeks to rely upon driving in a manner dangerous from 'failing to keep a proper lookout'. 57. There are many different categories of driving in a manner dangerous. There are B-double drivers who choose to reach down to get their mobile phones and send text messages, take their eyes off the road and run into much smaller cars sometimes parked on the side of the road seemingly out of care's way. There are extreme cases of people driving through red lights at high speed without regard to the safety of others. In the area of sentencing for the offence for which the offender was found not guilty there are expressions such as the "abandonment of responsibility". The courts recognise that within the ambit of that particular offence, the offences with which I am concerned, there is a range of conduct that might constitute dangerous driving. Momentary inattention has been held to be 'dangerous driving' as much as driving at 200 kilometres per hour in a built-up area without regard to the road conditions and/or other matters. 58. In any event, in the context of sentencing someone in relation to an offence that involves the causing of harm or death even to another person the courts are required, in the assessment of the objective gravity of the offence, to take into account a range of matters. All the surrounding circumstances and also the actual moral culpability of the offender, the state of mind of the offender at the time of the offence, the character of his or her intention, or his or her degree of carelessness, if that be a way of describing aspects of negligent driving, and this I have done. 59. It is clear from the victim impact statements to which I earlier referred that there is a great deal of bitterness towards the defendant. Obviously there is nothing I say or do that can ameliorate or mitigate this ill feeling towards the defendant. I accept that all the feelings expressed are from the heart and are genuine. But it should be understood that the sentencing of offenders is not to be undertaken for the purposes of revenge or undertaken in the context of allowing emotion to weigh more heavily upon reason. Of course, there must be understanding of the proper context of sentencing a particular individual. Sentencing someone for attempted murder is very different than sentencing someone for assault and the like. 60. There is another matter I need to raise quite directly for the purposes of the public expression of my remarks on sentencing and that is in a case where there is serious injury or death occasioned the orders made by a court are to be made in the context of the maximum penalty, the sentencing patterns. Taking into account all the objective and subjective matters does not in any way reflect a view the Court has or the community has for the worth of the deceased or injured party. It does not reflect in any way the view the Court has of the loss to loved ones from such tragic and difficult to understand or accept events. These aspects of the matter are incapable of assessment. They are incapable, really, of assessment in a proper manner. Sometimes when it becomes an issue of compensation for damages where that is an appropriate course to undertake by a court. 61. What is to be recognised is that the offence is one in each case involving the occasioning of death. Thus, in sentencing the offender by regard to the objective character of the offending I have regard of course to the fact that two people died as a result of the negligent act of the defendant, but that the act of the defendant was neither deliberate or foreplanned, malicious, desired or even foreseen. The negligence of the offender occurred over a very, very short period of time, a matter of seconds, perhaps even less, and has to be assessed in the context of the other factors that I have referred to in my summation of the facts of the case. 62. Apart from the evidence that was available to me from the trial and other material that went to the objective facts, including a further document from the defence expert dealing with particular scenarios and distances that would be travelled at particular speeds and the like, I have evidence as to the character of the defendant from the trial that I have already point to, I have evidence from his wife of 32 years. They have a son of their marriage. She has two sons from a previous marriage. 63. She offered her apologies to the family of the deceased, and I do accept that the offender obviously would have apologised. It was self-evident in his manner during the first of the police interviews he apologised to the family of the deceased. But the character of the litigation prevents such apologies occurring directly. His wife is a Nursing Assistant at Gundagai and she gives evidence of the effect upon the offender of the incident and its sequelae and the treatment of him in relation to anxiety and depressive symptoms. In that regard there is a report that is available to the Court from a counselling service that notes that the offender sought counselling within five or six weeks of the incident and over a period of time has exhibited a range of symptoms that have reflected the trauma caused to him by the incident, both the fact of the collision and of course the sequelae of the incident to which I have referred. 64. So far as his contrition, as I have said, I have accepted that that is genuine and his wife confirms that. There are issues in relation to the conduct of the farm, the wife continuing her work at Gundagai and the financial circumstances of the family. The defendant and his wife are not "wealthy farmers". They have a significant mortgage on their property and there is evidence of that in the financial papers that have been provided. 65. The capacity of the offender to maintain his licence, for example, is a matter raised with me. I have concluded of course, as I have indicated from the discussion we had in Wagga, that it would be difficult to persuade me not to record convictions, and I will not do so in due course. Mrs Clout has physical difficulties as well with heavy lifting and the like. Her capacity to help the offender around the farm is limited. 66. The defence provided some sentencing statistics in relation to offences of the type with which I am concerned. They do not deal with multiple offences admittedly arising out of the same incident. Of 59 cases recorded in the Local Courts between 2013 and 2016, 2% of the offenders were imprisoned, 56% of offenders were granted s 9 bonds, 17% were granted suspended sentences. Some were fined only. There were a few s 10 bonds and 2% were sentenced to home detention, 5% of offenders were sentenced to an Intensive Correction Order. 67. In respect of offenders with the defendant's profile, that is, a person over 50, pleading guilty with "no priors", there were no terms of imprisonment imposed out of 20 such cases, 65% of offenders were granted s 9 bonds, 15% were granted suspended sentences. Of course, these statistics do not provide any detail as to the extent of the negligence, the particular character of the offender, except beyond those that have no prior convictions, the age of the offender beyond a person being over 50. There are many, many matters required to be taken into account in sentencing offenders. 68. I accept the evidence establishes as I have indicated that the offender was genuinely affected by what happened. I also accept, as I have said from the assessment of the objective facts, that the negligent act on the part of the defendant was a momentary one, albeit with fatal consequences. I take into account the victim impact statements as required by law and I have already made some extensive comment about them. 69. In the context of the various submissions that were made by the defence, ultimately on the material available it was submitted that I may exercise the discretion available pursuant to s 10 Crimes (Sentencing Procedure) Act 1999. In my view the totality of the criminality prevents me from concluding that for the reasons submitted by Senior Counsel for the accused that it is inexpedient to impose any punishment and it is also expedient to release him on a bond to be of good behaviour without a conviction being recorded. 70. In this respect a conviction of course would lead to a period of disqualification. I am mindful of the fact, in the context of people living in country areas, on farms and the like, that the difficulties presented by disqualification are far greater than they will be for people living in urban areas that have access to public transport and support in obtaining transport for work or other private purposes. 71. I have had regard to the Court of Criminal Appeal judgment in R v Mauger [2012] NSWCCA 51 which discussed consideration of the imposition of a good behaviour bond and the differences between a bond resulting in a conviction and one that does not. But I have concluded I cannot exercise the discretion that was sought on behalf of the offender. The error of judgment in the context of the negligent act of the offender, short though it was, has had terrible consequences for the deceased and their family. 72. The Crown opposed the making of a s 10 order. It acknowledged the factual reality of the matter for the purposes of sentencing and the character of the moral and legal responsibility of the offender. The Crown did not in submissions, consistent with its usual role, urge a particular consequence upon the recording of a conviction. 73. In my view there is no realistic prospect of further substantial offending by the prisoner. In sentencing the offender I am required to have regard to s 3A Crimes (Sentencing Procedure) Act. Whilst there will be obviously some element of general deterrence in the sentencing of the offender, the weight of general deterrence in an exercise relating to this type of offending is not as great as it would be in respect of offences where the message of general deterrence will have great impact and where offences the Court is required to sentence for are, of necessity, invite significant penalties having regard to the very character of the offending. 74. There are various purposes of sentencing pursuant to s 3A Crimes (Sentencing Procedure) Act. Some are not, in my view, relevant here. Firstly, I do not believe there is evidence that there is a need to protect the community from the offender. There is nothing in his background or his subsequent conduct to suggest that he is by nature a reckless person in his management of motor vehicles. Of course the fact that he was familiar with the road may have led him into a false sense of security when he was driving on this particular day, but that is not the same as a person who has proven themselves to be a regular offender against the road regulations. There is a need to give weight to denunciation and making an offender accountable, promote his rehabilitation and the like. On the question of rehabilitation a man of his age with his background, with his character, it is not a case where rehabilitation is a matter of significance, because I do not believe there is an aspect of his character or his conduct that requires "rehabilitation" in the way those words are understood. 75. I take into account, however, the submissions that were made in the context of the matter with which I am concerned about general deterrence. So far as specific deterrence or personal deterrence, it is a matter of little moment in this case on all the evidence. 76. By regard to s 21A of the Act there are no other aggravating or mitigating factors arising under subs (1). There are no aggravating factors arising under subs (2). In relation to 'mitigating factors' under s 21A(3), that is by reference to matters to be taken into account, it is clear the offence was not planned criminal activity. The offender had no record of previous convictions. He was a person of good character, he is unlikely to reoffend. As I say, the issue of rehabilitation is not a significant matter because it does not actively come into play, there are no features of the offender which require attention for the purposes of rehabilitation. But for the purposes of this judgment obviously he has excellent prospects of rehabilitation. The offender has shown remorse in my view, in the manner in which I have identified, and in accordance with the terms of s 21A(3). I take into account his plea of guilty and his cooperation with the authorities to which I have already referred. 77. Thus, in the context of the maximum penalty to be considered and by regard to the consideration of the matters to which I have previously referred, I have determined in respect of sequence 3 - if you could stand up, please, Mr Clout which is the matter concerning Mr Black, the charge of negligent driving causing death, you are convicted. Pursuant to s 9 Crimes (Sentencing Procedure) Act 1999 I order that you enter into a good behaviour bond for a period of two years from today. 78. Conditions applying during the term of the bond are as follows. Firstly, you are to appear before Court if called to do so at any time. Secondly, you are to be of good behaviour, thirdly, you are to advise the Registrar or the Clerk of the Criminal Listing Directorate of the District Court at Wagga Wagga of any change of residential address. I see no purpose in ordering any period of supervision. 79. You are disqualified from holding a motor vehicle driver's licence for a period of one year from 28 March 2017 expiring on 27 March 2018. 80. In the context of determining that the matters require the imposition of good behaviour bonds, I propose because of the issue of totality to impose a longer period of restraint of liberty in relation to sequence 4. In relation to that matter pursuant to s9 Crimes (Sentencing Procedure) Act I order that you enter into a good behaviour bond for a period of three years from today. Conditions applying during the term of the bond are as follows. Firstly, you are to appear before Court if called to do so at any time. Secondly, you are to be of good behaviour and, thirdly, you are to advise the Registrar or the Clerk of the Criminal Listing Directorate of the District Court at Wagga Wagga of any change of residential address. Again, I do not order any supervision. 81. In relation to that offence you are disqualified from holding a motor vehicle driver's licence for a period of one year but this will date from 28 June 2017 and expire on 27 June 2018. Thus the total period of disqualification will be 15 months. 82. Mr Crown, any matters from you? 83. KIMBELL: No, your Honour. 84. HIS HONOUR: Any matters from you, Mr Maksisi. 85. MAKSISI: No, your Honour. 86. HIS HONOUR: Mr Clout, you are disqualified from holding a motor vehicle driver's licence for 15 months from today. That will mean that if you drive a motor vehicle on a public road in the next 15 months you'll be charged with driving whilst disqualified, that would be serious breach of course of the bond that I have given you in relation to the matter. If you breach the bonds I've given you, you will be called up for sentence and then I will be required to consider alternatives to a good behaviour bond under s 9 of the Act. ********** 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: 24 May 2017