Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wells v R [2017] NSWCCA 242 Hearing dates: 9 August 2017 Decision date: 13 October 2017 Before: Gleeson JA at [1] Harrison J at [2] Button J at [3] Decision: (1) Leave to appeal against conviction granted to the extent necessary. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence dismissed. Catchwords: CRIMINAL LAW – conviction appeal – negligent driving occasioning death – not giving way when making U-turn – where emergency vehicle – whether convictions are unreasonable and not supported by the evidence – whether trial judge erred in construction – s 42 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed) – rr 78 and 79 of the Road Rules 2008 (NSW) (repealed) – whether denial of procedural fairness in trial judge making findings diverging from agreed facts – appeal dismissed SENTENCE – appeal – whether sentencing judge failed to take into account a relevant consideration – whether ICO manifestly excessive – appeal dismissed Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1); 21A(3)(i) Criminal Appeal Act 1912 (NSW), ss 5(1)(c); 5AA; 5AD; 6 Criminal Procedure Act 1986 (NSW), s 166 Road Rules 2008 (NSW) (repealed), rr 38; 78; 79; 306 Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed), s 42 Rural Fires Act 1997 (NSW) State Emergency and Rescue Management Act 1989 (NSW), s 4 Cases Cited: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 House v The King (1936) 55 CLR 499; [1936] HCA 40 R v Moffatt [2000] NSWCCA 174 R v Pogson (2012) 82 NSWLR 60 R v Wells [2016] NSWDC 169 R v Wells (No 2) [2016] NSWDC 313 Royall v R (1991) 172 CLR 378; [1991] HCA 27 Category: Principal judgment Parties: Ian Jeffrey Wells (Applicant) Regina (Respondent) Representation: Counsel: G Craddock SC / M Higgins (Applicant) M Cinque SC (Respondent) Solicitors: Crown Solicitors Office (Applicant) Director of Public Prosecutions (Respondent) File Number(s): 2013/00044288006 Publication restriction: Nil Decision under appeal Court or tribunal: District Court at Sydney Jurisdiction: Criminal Citation: [2016] NSWDC 169 Date of Decision: 17 August 2016 Before: Berman SC DCJ File Number(s): 2013/44288 Judgment 1. GLEESON JA: I agree with Button J. 2. HARRISON J: I agree with Button J. 3. BUTTON J: Introduction 1. A little after 10.21 pm on 18 October 2012, Ian Jeffrey Wells (the appellant) was driving a Rural Fire Service fire tanker (the tanker) on the F3 freeway to the north of Sydney. The tanker collided with a Toyota Corolla sedan. A Mazda sedan then collided with the stationary Corolla. The second collision directly caused the death of Mrs Katina Mihailidis (the deceased), who was a passenger in the Corolla. 2. The appellant stood his trial by jury on two charges, one of which was an offence of dangerous driving causing the death of the deceased. At the end of the trial, the appellant was acquitted on all counts. 3. Thereafter, the trial judge, Judge Berman SC, was asked to hear a charge of negligent driving causing the death of the deceased (the primary offence), and a charge of making a U-turn without giving way to a vehicle (the secondary offence). Those wholly summary offences were placed before his Honour by consent, and pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). 4. The primary offence was created by s 42(1) of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (repealed) (the Road Transport Act). It carried a maximum penalty of imprisonment for 18 months and a $3300 fine for a "first offence", when the negligent driving occasioned death. 5. The secondary offence was created by r 38 of the Road Rules 2008 (NSW) (repealed) (the Road Rules), and carried a maximum penalty of a $2200 fine. 6. At the end of the hearing, his Honour returned a verdict of guilty of both charges. A detailed judgment was delivered by his Honour explaining the reasons for those verdicts: R v Wells [2016] NSWDC 169. 7. On 16 September 2016, his Honour delivered remarks on sentence: R v Wells (No 2) [2016] NSWDC 313. In those remarks, the sentencing judge proceeded on the basis that the primary offence was a first offence as defined, and therefore the maximum penalty that I have set out above applied. 8. At the conclusion of those remarks, his Honour adjourned the proceedings on sentence in order to permit the appellant to be assessed as to his suitability for an Intensive Correction Order (ICO). 9. Ultimately, on 2 December 2016, the appellant was sentenced to imprisonment for 12 months, to be served by way of an ICO, for the primary offence; fined the amount of $1000 for the secondary offence; and disqualified from driving for 12 months. 10. The appellant appealed to this Court against conviction and sentence, pursuant to ss 5AD and 5AA of the Criminal Appeal Act 1912 (NSW) (the Criminal Appeal Act). Pursuant to s 5AD(3) of the same Act, an order was made that the appeal with regard to those two summary offences be heard by a bench of three judges of this Court. Background 1. The following were not matters of controversy, and are derived largely from a document entitled "Agreed Facts" that was placed before his Honour. 2. The appellant was a volunteer rural firefighter with a brigade north of Sydney. 3. The tanker was a heavy and slow vehicle. 4. At around 6.00 pm, the appellant was paged to attend the Rural Fire Service station at Kariong. From there, he travelled in the tanker to the Mount White weighbridge station, where there had been a spillage of concentrated orange juice. The spillage was classified as "hazardous". He arrived at 6.21 pm. 5. At about 9.15 pm, the appellant and another volunteer, Mr Barwick, were directed to leave the weighbridge station and attend a motor vehicle accident at a location on the freeway to the south. 6. The appellant and Mr Barwick arrived at that incident, again in the tanker, at about 9.18 pm. They attended to duties there. 7. At about 10.21 pm, the appellant and Mr Barwick were directed to return to the spillage at the weighbridge station. 8. The appellant drove some distance south, and then commenced to perform a U-turn at a turning bay on the freeway, turning right from a direction heading south to a direction heading north. 9. The U-turn bay was signposted explicitly permitting emergency vehicles to perform a U-turn there. 10. At the point at which the appellant performed the U-turn, there were three lanes travelling northbound, and three lanes travelling southbound. (In this judgment, I shall refer to the northbound lane closest to the curb as lane one northbound, the middle lane travelling north as lane two northbound, and the northbound lane closest to the median strip as three lane northbound. I shall adopt the same convention with regard to the southbound lanes.) 11. At the location at which the U-turn was performed, the speed limit was 110 km/h in both directions. There was no street lighting on that part of the freeway. 12. Before commencing the U-turn from southbound to northbound, the appellant activated the emergency lights on the tanker. 13. The tanker commenced the U-turn from lane two southbound. That was possible, and safe, because there was no southbound traffic. 14. The tanker moved through the turning bay at a walking pace. 15. At the same time, the Toyota Corolla driven by Mr Peter Mihailidis was travelling on the freeway in lane three northbound. 16. Approximately 350 m south of the U-turn bay, the Corolla moved from lane three northbound to lane two northbound. 17. At approximately the same position, Mr Mihailidis flashed the high beams of the Corolla. 18. The flashing of the high beams was visible from the cabin of the tanker, and Mr Barwick told the appellant that the driver of the Corolla had flashed its high beams. 19. As part of performing the U-turn, the tanker left the turning bay, and moved into lane three northbound. 20. After that occurred, the Corolla changed lanes from lane two northbound to lane three northbound. 21. After that, the appellant steered the tanker from lane three northbound so that it was partly in lane two northbound. He did that in order to avoid colliding with the Corolla in lane three northbound. 22. The Corolla collided with the tanker. At the point of impact, the Corolla was wholly within lane three northbound. 23. After that collision, the appellant drove the tanker to the breakdown lane next to the northbound curb to the west. 24. As a result of the collision, the Corolla was stationary in lane three northbound. The collision had damaged its electrical circuits, and it was not illuminated. 25. The death of the deceased was not occasioned as a direct result of the first collision. 26. At the time of that first collision, the Mazda sedan was to the south. Ms Nicole Burton was driving the Mazda sedan. It was travelling in lane three northbound, at a speed of up to 115 km/h towards the tanker and the Corolla. 27. When Ms Burton saw the flashing lights of the tanker in the northbound breakdown lane in front of her and to her left, she took her foot off the accelerator. 28. The Mazda driven by Ms Burton collided with the Corolla, which was (as I have said) stationary in lane three northbound. That collision directly caused the death of the deceased. 29. As at the evening in question, Mr Mihailidis, the driver of the Corolla sedan, had moderate to severe obstructive sleep apnoea. He had not been compliant with his treatment for that condition. 30. Mr Mihailidis also suffered from a number of impairments to his vision. Those impairments were exacerbated by the flashing lights of the tanker. 31. Separately, at the hearing of the appeal, a video that had been tendered in evidence of a number of reconstructions of the movements of the vehicles was played in Court. So was the audio-visual product of a camera that was situated on the dashboard of a truck travelling northbound behind the Mazda sedan. As for the latter, whilst making due allowance for the differences between how the streetscape appeared on the video, and how it would have appeared in reality, it showed how quickly and unexpectedly a vehicle travelling at approximately 110 km/h on an unlit freeway would have come upon the unlit Corolla. Summary of the reasons for verdict 1. The reasons for verdict may be summarised as follows. 2. They commence with the procedural history of the matter, including the verdicts of not guilty returned by the jury. 3. They recount the undisputed facts consistently with the summary that I have provided above. 4. The reasons for verdict go on to discuss the issues placed before the jury. 5. They proceed to reject a submission of defence counsel with regard to r 306 of the Road Rules. That rejection forms part of ground four of the appeal against conviction, discussed below. 6. The reasons go on to discuss what needs to be proven with regard to a charge of negligent driving. Amongst other things, his Honour said at [33] that "[n]egligent conduct penalised by the criminal law must evidence such a marked departure from the standard of care that the reasonable person would have exercised, that it merits criminal punishment." Thereafter his Honour said the following: "[36] The test for criminal negligence in this context is well expressed in [sic] by Johnson J in DPP v Yeo & Anor [2008] NSWCSC 953 [sic] as follows: 27 Negligent driving is established where it is proved beyond reasonable doubt that the accused person drove a motor vehicle in a manner involving a departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances. The distinction which may be drawn between driving negligently, driving in a manner dangerous to the public and driving of a kind which justifies a conviction for manslaughter is essentially a distinction in the degree of negligence appropriate to the offence, being a distinction in the degree of departure from the standard of care for other users of the road to be expected of the ordinary prudent driver in the circumstances: R v Buttsworth at 672. … 29 The question is essentially whether the driver was exercising that degree of care which the ordinary prudent driver would exercise in all the circumstances, including the circumstances as set out in s.42(3): Simpson v Peat [1952] 2 QB 24." [italics in original] 1. The reasons go on to summarise concisely the respective cases, and then provide findings that will be detailed later in this judgment. His Honour went on to set out twelve reasons (by way of dot points) why his Honour was satisfied beyond reasonable doubt that the driving of the appellant was negligent. Again, those points will be discussed in more detail later in this judgment. 2. Thereafter, the reasons make it clear that the nub of the criminal negligence was the failure to take the "obvious decision" open to the driver of a heavy vehicle proposing to enter an expressway: to wait until the oncoming vehicle had passed before doing so. 3. The reasons for verdict then turn to the second disputed element, causation. Although the direct cause of the death of the deceased was undoubtedly the collision between the stationary Corolla and the oncoming Mazda, the reasons make the point that there can be more than one cause of an outcome. They go on to reject the submission of defence counsel that it was the driving of Ms Burton of the Mazda that caused the death of the deceased, to the exclusion of the driving of the appellant of the tanker also being a cause. The reasons speak of the role that common sense is to play in the assessment by a tribunal of fact of causation in criminal proceedings. 4. The reasons for verdict conclude with the finding that the appellant was guilty of both the primary offence and of the secondary offence. Summary of the remarks on sentence 1. The remarks on sentence commence by summarising the circumstances and events of the collision. They make an assessment of moral culpability that balances the favourable fact that the negligent driving was made out by the mere implementation of a bad decision against the negative fact that there was no urgency compelling that bad decision. 2. The remarks on sentence refer to the powerful subjective case of the appellant, including the effect that the death of the deceased had had upon him. They also refer to the fact that the appellant had continued his volunteer work, which inherently exposed him to a degree of danger. 3. The remarks refer to the fact that the appellant had no criminal history, but did have a driving record, including an entry for negligent driving, albeit from about 20 years previously. 4. The remarks also refer to the fact that the appellant had had the proceedings hanging over his head for years, a delay that was by no means all of his own making. 5. His Honour referred to the difficult challenge that the appellant and his family would face as a result of his wife's diagnosis with breast cancer. 6. The remarks on sentence go on to refer to the need for general deterrence, and the need for the sentence to reflect the objective fact that a person had died as a result of the offence committed by the appellant. 7. The remarks on sentence conclude by a finding that a sentence of imprisonment was appropriate, but that it was also appropriate for the appellant to be assessed with regard to his suitability for an ICO. 8. Subsequently, as I have said, the appellant having been found suitable for such a sentence, an ICO of 12 months was imposed for the primary offence. Grounds of appeal against conviction 1. The following grounds were notified before the hearing of the appeal. Although some of them were not the subject of extensive oral submissions by senior counsel, none of them were withdrawn prior to or at the hearing of the appeal, and I consider that I should deal with all of them, albeit some more briefly than others. (1) The convictions are unreasonable and cannot be supported by the evidence having regard to the trial Judge's findings, whether singly or in combination, that: (a) the problems that Mr Mihailidis had with his vision may have contributed to the collision; (b) Mr Mihailidis moved his vehicle from lane 3 to lane 2 and then back to lane 3, the first of those manoeuvres coinciding with him flashing his lights; and; (c) the appellant was entitled to assume that Mr Mihailidis would see the Rural Fire Service tanker as an emergency vehicle and give way to it as the road rules required. (2) The trial Judge erred in law by misconstruing s 42 of the Road Transport (Safety and Traffic Management) Act 1999. (3) The convictions involve a denial of procedural fairness in that the trial Judge proceeded upon agreed facts tendered jointly by the parties but then, without notice and an opportunity to be heard, made findings in contradiction of the agreed facts. (4) The trial Judge erred in the construction of Road Rules 78 and 79 of the Road Rules 2008 (repealed). Nature of appeal against conviction 1. There was no dispute between senior counsel who appeared for the parties that an appeal against conviction brought pursuant to ss 5AD and 5AA of the Criminal Appeal Act should be determined in the same way in which an appeal against conviction on indictment entered after a trial by judge alone is determined. 2. In other words, to quote the recent discussion by the High Court of Australia in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [12] of the role of a court of criminal appeal when considering a ground of appeal asserting that a conviction is unreasonable or unable to be supported after a trial by judge alone: "…[I]n the case of an appeal against a judge's finding of guilt, the finding is not to be disturbed under the first limb of s 6(1) of the Criminal Appeal Act unless there is no or insufficient evidence to support the finding, or the finding is otherwise unreasonable, or the evidence was all the one way, or the judge has so misdirected himself or herself on a matter of law as to result in a miscarriage of justice. It is, however, to be borne steadily in mind that, as with a jury's verdict, so also with the judgment and verdict of a judge alone, in most cases a doubt experienced by an appellate court will be a doubt which the judge ought to have experienced." 1. Separately, senior counsel for the Crown did not submit that any distinction should be drawn between those grounds of appeal against conviction that required leave and those that did not, and was content for all grounds to be determined on their merits. Discussion of the grounds of appeal against conviction Ground one The convictions are unreasonable and cannot be supported by the evidence having regard to the trial Judge's findings, whether singly or in combination, that: (a) the problems that Mr Mihailidis had with his vision may have contributed to the collision; (b) Mr Mihailidis moved his vehicle from lane 3 to lane 2 and then back to lane 3, the first of those manoeuvres coinciding with him flashing his lights; and; (c) the appellant was entitled to assume that Mr Mihailidis would see the Rural Fire Service tanker as an emergency vehicle and give way to it as the road rules required. Submissions of the appellant 1. Senior counsel for the appellant made it clear that his fundamental submission was that it was not open to his Honour to find that any negligent driving on the part of the appellant caused the death of the deceased. 2. Expanding on the first part of that submission, he submitted that it could not be said that the appellant drove negligently: he was performing a U-turn at a bay at which he was legally entitled to do so; he was performing the turn at a walking pace; he had his emergency flashing lights illuminated; he had been informed by his passenger that the Corolla sedan approaching from the south had flashed its lights, indicating that its driver was aware of the presence of the tanker; and, shortly before the collision, the Corolla had moved from lane three northbound to lane two northbound. 3. Senior counsel made it clear that he was not blaming Mr Mihailidis for the collision that led to the subsequent, fatal collision. Nor did he assert that Mr Mihailidis drove negligently when he changed from lane two northbound to lane three northbound. Rather, senior counsel submitted that that manoeuvre – which led to the collision in lane three northbound – was as a result of Mr Mihailidis's vision being even further impaired than it usually was by the flashing lights of the tanker. 4. In short, the submission was that this Court, making its own independent assessment of the evidence, would find that it was not open to his Honour to be satisfied beyond reasonable doubt that the element of negligent driving had been established. 5. Turning to the second disputed element within the primary offence, senior counsel accepted that, in criminal law, the test for causation is one of substantial contribution. But his firm oral submission was that it was not open to the trial judge to find anything other than that the driving of Mr Mihailidis was the sole cause of the collision between the Corolla sedan and the tanker. Determination 1. It was agreed between the parties that, as at the date in question, the offence creating provision with regard to negligent driving causing death was s 42 of the Road Transport Act. That section was relevantly as follows: 42 Negligent, furious or reckless driving (cf Traffic Act, s 4) (1) A person must not drive a motor vehicle negligently on a road or road related area. Maximum penalty: (a) if the driving occasions death—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence), or… … (3) In considering whether an offence has been committed under this section, the court is to have regard to all the circumstances of the case, including the following: (a) the nature, condition and use of the road or road related area on which the offence is alleged to have been committed, (b) the amount of traffic that actually is at the time, or which might reasonably be expected to be, on the road or road related area. … 1. In a nutshell, the Crown case at the hearing was that the decision of the appellant to proceed to perform the U-turn and his implementation of that decision constituted negligent driving for the purposes of the criminal law. 2. To be clear, it was not the Crown case that the appellant was driving negligently in the sense of driving too fast, swerving from side to side, failing to keep a proper lookout, or any other negative attribute of his mode of driving itself. Rather, it was the act of commencing and continuing the U-turn of the tanker, in all of the surrounding circumstances, that was said to be sufficiently negligent to found the necessary element of the criminal offence. 3. In my opinion, it was open to the trial judge to find, in all of the circumstances – the road in question being a freeway, on which the speed limit was 110 km/h, and on which motor vehicles travel at that speed, and often higher; the crucial events taking place at night; the freeway being unlit; the fact that the vehicle of Mr Mihailidis was approaching from the south; the fact that the tanker was performing a U-turn into lane three northbound, a lane reserved for overtaking vehicles travelling at speed; the fact that the appellant needed only to wait a matter of seconds until the Corolla had driven past, and the northbound lanes had cleared – that the decision of the appellant to commence the U-turn proceed into lane three northbound was negligent. 4. As for the particular of the ground that asserts that the appellant was "entitled to assume" that the driver of the oncoming vehicle would appreciate that the vehicle pulling from the U-turn bay into lane three northbound was an emergency vehicle, and that he would give way to it, his Honour rejected that proposition of fact at page 34 of his judgment on verdict. His Honour was entitled to do so, on a number of bases. 5. First, bearing in mind all of the circumstances that I have set out in the paragraph immediately above, the appellant, in my own opinion, was not entitled so to assume. It was and is quite possible that Mr Mihailidis, in flashing the lights of his vehicle, was doing so as a warning, and not as an indication that he was proposing to, or able to, give way. 6. Secondly, in any event, to the extent that the driving of Mr Mihailidis is impugned, it was open to his Honour to find (as his Honour did at the fifth and tenth dot points within [45] of his reasons for verdict), that Mr Mihailidis could have changed lanes from lane two northbound to lane three northbound in order to avoid the collision with the tanker that he believed was to occur, on the reasonable assumption that that slow moving vehicle was crossing to lane two northbound, or even lane one northbound. 7. Thirdly and finally, speaking more generally, merely because a driver might assume, or be entitled to assume, that other drivers will drive in a certain way, does not preclude a finding that the driver in question was otherwise driving negligently, even if the other driver or drivers do not drive in accordance with that assumption. That raises the issue of multiple causes of outcomes in criminal law, to which I shall turn shortly. 8. In short, I consider that it was open to his Honour as tribunal of fact to find that the appellant drove negligently by manoeuvring the tanker as he did. 9. Turning to the second disputed element of the offence, in criminal law the concept of causation is founded upon substantial contribution: Royall v R (1991) 172 CLR 378; [1991] HCA 27; R v Moffatt [2000] NSWCCA 174. The fundamental question is whether the prosecution can prove to the criminal standard that the act of the defendant or accused substantially contributed to the adverse outcome. Furthermore, in order to prove that an act substantially contributed to an outcome, the prosecution need not prove that the act was the only substantial contribution, or even the most substantial contribution. 10. It was open to his Honour to find that the decision of Mr Mihailidis to change from lane two northbound to lane three northbound may have contributed to the death of the deceased. It was also open to his Honour to have found that the eyesight of Mr Mihailidis may have played a contributing role in his decision to move back from lane two northbound to lane three northbound. But even with those findings having been made, they did not exculpate the appellant. That is because, as I have said, as a matter of law and common sense, there can be more than one substantial contribution to an outcome. 11. In my opinion, it was open to his Honour to find that the negligent driving of the appellant – that is, pulling out from the U-turn bay into lane three northbound, in all of the circumstances that I have set out above – was a substantial contribution to the collision between the tanker and the Corolla, which led directly to the fatal collision between the Mazda and the Corolla. 12. It was also quite open to his Honour to reject the proposition of senior counsel that the sole factor that substantially contributed to the death of the deceased was the decision of Mr Mihailidis to move from lane two northbound to lane three northbound after flashing his lights. 13. In short, in my opinion it was open to his Honour to be satisfied beyond reasonable doubt that the elements of the offence of negligent driving causing death had been established beyond reasonable doubt. 14. I would reject ground one. Ground two The trial Judge erred in law by misconstruing s 42 of the Road Transport (Safety and Traffic Management) Act 1999. Submissions of the appellant 1. This ground focused on s 42(3) of the Road Transport Act, the offence-creating provision with regard to the primary offence, which I have extracted above. Senior counsel placed emphasis on the following portion of the reasons for verdict of the trial judge: "[41] The problems that Mr Mihailidis had with his vision may have contributed to the collision, in particular his decision to move the Corolla from lane 2 north to lane 3 north once the RFS tanker began entering the northbound carriageway. His ability to correctly perceive the path that the RFS tanker was taking may have been effected by the cataract he had in one eye and the intra ocular lens he had in the other. However I find that he was legally entitled to drive in that he had been recently tested and met the vision standards required to hold a drivers' licence. As I explain later, even a driver with perfect vision could easily be unaware that the accused was intending to perform a U-turn. And in any case, drivers must drive in a way which takes account of the abilities of all other drivers who are on the road. We all have different levels of vision, we all have different reaction times. Some drivers startle more easily than others. Mr Wells was entitled to assume that Mr Mihailidis' vision allowed him to legally drive. He was not entitled to assume more than that." 1. It was said that his Honour, in speaking of Mr Mihailidis being legally "entitled to drive," had dismissed from the evaluation required by s 42(3) of the Road Transport Act the role played by the vision problems of Mr Mihailidis, and the role that they played in his change of lane from lane two northbound to lane three northbound. 2. As for the last two sentences of the paragraph, senior counsel submitted that the appellant had been told by his passenger of a clear indication given by the driver of the oncoming vehicle that that driver was aware of the presence of the tanker, and yet the driver of the Corolla steered it into the lane into which the tanker was turning. 3. Our attention was also invited to the second sentence of [42] of the reasons for verdict, at which his Honour said: "I am prepared to proceed on the basis that the [appellant] was entitled to assume that Mr Mihailidis would see the [tanker] as an emergency vehicle and give way to it as the road rules required." 4. It was said that such a finding was consistent with the absence of criminal negligence on the part of the appellant. It was submitted that, after the appellant became aware that the driver of the oncoming vehicle had flashed his lights, thereby showing that that driver was aware of the presence of the tanker, it was not negligent driving for the appellant to manoeuvre the tanker into lane three northbound as part of the U-turn. Determination 1. I do not accept that his Honour has misconstrued the subsection in question. To the contrary, in my respectful opinion the reasons for verdict are a highly detailed analysis of all of the circumstances that pertained in the period leading up to, and at the time of, the collision between the Corolla and the tanker. 2. As the reasons for verdict make plain at [41] and [42], his Honour appreciated that there could well be other factors, apart from the driving of the appellant, that substantially contributed to the first collision. But as I have explained above, identification of other substantial contributions does not mean that an act of a defendant driver was not a substantial contribution as well. 3. More particularly, his Honour made it clear that the matters referred to in [41] and [42] should be seen as "findings made in the [appellant's]'s favour". But his Honour went on at [43] also to make it clear that, even assuming all of those positive aspects of the evidence in favour of the appellant, nevertheless his Honour was satisfied beyond reasonable doubt that, in pulling out of the U-turn bay in the circumstances in which he did, the appellant was driving negligently. There is no error in that analysis. Ground three The convictions involve a denial of procedural fairness in that the trial Judge proceeded upon agreed facts tendered jointly by the parties but then, without notice and an opportunity to be heard, made findings in contradiction of the agreed facts. Submissions of the appellant 1. As can be seen, the nub of this ground is an assertion that, in departing from the agreed facts without notice in a way adverse to the appellant, his Honour denied him procedural fairness. 2. Because very little was said at the hearing in support of this ground, it is convenient to set out the portions of the agreed facts that are relied upon in the written submissions; then the portions of the reasons for verdict that are relied upon in those submissions; and thereafter summarise the ways in which the written submissions assert that the latter deviated from the former. 3. I shall first set out the paragraphs of the agreed facts relied upon, changing them only so as to reflect the terminology that I have used in this judgment: [43] The Corolla changed from lane two northbound into lane three northbound after the tanker moved from the U-turn bay into lane three northbound. [44] Position number C2 in exhibit J is the position of the Corolla when it changed lanes from lane two northbound into lane three northbound. [45] Position number six in exhibit J is the position of the tanker when the Corolla changed from lane two northbound into lane three northbound. [46] After the Corolla changed from lane two northbound into lane three northbound, the accused steered the tanker from lane three northbound to be partly in lane two northbound. [Bolding added by me to aid the comprehension of the reader] I should add that Exhibit J was an exhibit that was marked by Mr Barwick, the passenger in the tanker, at committal. 1. His Honour said the following in the reasons for verdict: "[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 with them 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 rear view 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 10-15kph. … [41] The problems that Mr Mihailidis had with his vision may have contributed to the collision, in particular his decision to move the Corolla from lane 2 north to lane 3 north once the RFS tanker began entering the northbound carriageway. His ability to correctly perceive the path that the RFS tanker was taking may have been effected by the cataract he had in one eye and the intra ocular lens he had in the other. However I find that he was legally entitled to drive in that he had been recently tested and met the vision standards required to hold a drivers' licence. As I explain later, even a driver with perfect vision could easily be unaware that the accused was intending to perform a U-turn. And in any case, drivers must drive in a way which takes account of the abilities of all other drivers who are on the road. We all have different levels of vision, we all have different reaction times. Some drivers startle more easily than others. Mr Wells was entitled to assume that Mr Mihailidis' vision allowed him to legally drive. He was not entitled to assume more than that. [42] I accept, because it is consistent with statement of agreed facts, that Mr Mihailidis moved his vehicle from lane 3 to lane 2 and then back to lane 3, the first of those manoeuvres coinciding with him flashing his lights. I am prepared to proceed on the basis that the accused was entitled to assume that Mr Mihailidis would see the RFS tanker as an emergency vehicle and give way to it as the road rules required. … [45] I find that the accused's driving was criminally negligent for the following reasons, acknowledging of course that there is some considerable overlap in the matters to which I will now refer: [1] The accused should have foreseen that northbound vehicles approaching him would be travelling at or about that speed limit of 110kph. A reasonable and prudent driver would foresee that. [2] The accused must have also understood, as would a reasonable and prudent driver, that when he turned his vehicle and entered lane 3 northbound there was going to be an enormous speed differential between Mr Mihailidis' approaching Corolla and the RFS tanker, even if that tanker accelerated as fast as it was able. When the collision occurred the tanker was only doing about 10-15kph and was only 8 metres past the U-turn bay. [3] The accused should have also foreseen that drivers do not always act as anticipated and that even drivers with perfect vision can be startled by unexpected events. In this regard, the accused well knew that it was night time with no lighting in the area. These matters would also be foreseen by a reasonable and prudent driver. [4] The accused believed, as did Mr Barwick that when Mr Mihailidis flashed his lights and moved into lane 2 he was in effect saying "I acknowledge your presence on the roadway and it is safe for you to enter the northbound carriageway". If he were a reasonable and prudent driver, the accused would have foreseen that it was entirely possible that Mr Mihailidis flashed his lights as a warning and moved into lane 2 at the same time to avoid the danger which he could see approaching from his right. [5] The accused should have foreseen that one entirely logical response to a vehicle entering from a driver's right, apparently taking a path from right to left in front of him or her, is to steer to the right and pass behind the apparent path of the other vehicle. At the very least the accused should have foreseen that Mr Mihailidis might have been unaware that he intended to turn into Lane 3 and so he should have foreseen, as a reasonable and prudent driver would, that there was a risk that the oncoming driver would, wrongly, perceive that the RFS tanker was going to cross his path and so would steer his vehicle to the right in an attempt to pass behind the apparent path of the other vehicle. [6] Further, even accepting that the accused was driving an emergency vehicle in that he was responding to an event which threatened to damage property back at the Mount White vehicle checking station the accused should have foreseen that the driver of an approaching vehicle would not have known what Mr Wells' intention was. The driver of an approaching vehicle would just see an emergency vehicle on his right but the driver would not know whether the emergency vehicle was responding to an incident located at the position where the RFS tanker was at the time (perhaps somewhere in the 8 metres gap between the 2 carriageways), or responding to an emergency on the left hand side of the northbound carriageway, or performing a U-turn so that the vehicle can travel north along that carriageway. [7] Mr Wells knew what he intended to do, namely enter lane 3 and travel north, but a reasonable and prudent driver would foresee that this intention was not at all obvious to the driver of a vehicle approaching at or about 110 kph. Mr Wells knew what he was planning to do, but he should have foreseen that an approaching driver would not share that knowledge. [8] Even assuming that the driver of an approaching vehicle could work out that the emergency vehicle was in the process of performing a U-turn, Mr Wells should have foreseen, because a reasonable and prudent driver would, that given that Mr Mihailidis' car was the only vehicle approaching, it would not be unreasonable for the driver of a car approaching an emergency vehicle to expect the driver of the emergency vehicle to stop and wait the 11 seconds it would take to allow the approaching car to pass, before entering the northbound carriageway, and that the driver of the approaching car may be startled when that did not occur. [9] Mr Higgins [defence counsel] relies on some evidence in the trial as to the unlikelihood of a driver steering towards an emerging hazard. There was evidence in the trial about a study in which a researcher had reviewed driver's responses in actual collisions. It was found that steering towards an emerging hazard is very rare. However circumstances behind real world collisions must vary enormously. The collision that I am concerned with arose in particular circumstances and, while relevant to the foreseeability that Mr Mihailidis would have swerved to his right immediately before the collision, the study to which reference was made in evidence at the trial establishes little about the circumstances of this particular collision. Like many statistics, they say much about a population, but say much less about an individual event. [10] In the particular circumstances of this evening, especially where Mr Mihailidis was the only vehicle approaching, and could have been forgiven for thinking that the emergency vehicle he could see ahead would not enter the carriageway until after he had gone past it, the sudden and unexpected emergence of a threat which appeared to him to be entering on his right and moving towards his left could have led to him making the decision to respond to this emerging threat by veering behind the apparent path of the emergency vehicle. This is especially the case if, as I have found it foreseeable that it was, the flashing of the lights coinciding with the move from lane 3 to lane 2 was a warning to alert the driver of the RFS tanker that a car was approaching at high speed, rather than an invitation to proceed as the accused interpreted it. [11] It was foreseeable to the accused that the driver of the sole vehicle approaching might have responded to the RFS tanker entering the northbound carriageway in unexpected ways, including by doing exactly what Mr Mihailidis did. [12] It was foreseeable by a reasonable and prudent driver that a collision could occur as a result of the accused's manner of driving, in particular by the driver of the approaching vehicle changing from lane 2 to lane 3 to avoid what was perceived as a risk that the RFS tanker would move from the driver's right, across his path of travel in lane 2." [The bolding of two words above has been added by me to aid the comprehension of the reader of the ground. The dot points have been numbered by me for the same purpose.] 1. It was said for the appellant that that the use of the words emphasised by me above in the reasons for verdict contradicted, in a very important way, the agreed facts. It was said that the timing of the movements of the two vehicles was "critical", in that the agreed facts reflected the joint position of the parties that the Corolla in fact returned to lane three northbound from lane two northbound after the tanker had moved into lane three northbound. 2. It was also asserted in written submissions that a number of the dot points (numbered [1]-[12] above) to be found in [45] of the reasons for verdict impermissibly contradicted the agreed facts, as follows. 3. It was submitted in writing that the fourth point conflicts with the agreed facts, in that it raises the possibility that Mr Mihailidis flashed his lights and moved to lane two northbound "for a different reason". 4. It was submitted in writing that the sixth point was contrary to the agreed facts by raising the possibility that the driver of the Corolla might have thought that the appellant was responding to an emergency "where the tanker was at that time". 5. It was submitted in writing that the seventh point negates the agreed facts, by raising the possibility that Mr Mihailidis was not in fact signalling his recognition that the appellant was making a U-turn, and signalling that Mr Mihailidis would give way. 6. The eighth point was said to negate the agreed facts by raising the possibility that Mr Mihailidis, rather than giving way, would expect the driver of the tanker to wait until the Corolla had passed by. 7. It was said that the tenth point suffers from the same vice. 8. The eleventh point was said to contradict the general proposition that the trial judge would approach the matter pursuant to the agreed facts. 9. Finally, it was submitted in writing that the twelfth point contradicts the agreed facts, in that the parties had agreed that, at the point in time reflected by the markings on Exhibit J, the tanker was in lane three northbound and the Corolla was in lane two northbound. Separately, it was said in written submissions that the twelfth point contradicts the statement of his Honour at [42] of the reasons for verdict that he would "proceed on the basis that the appellant was entitled to assume that Mr Mihailidis would in fact give way". Determination 1. An immediate difficulty with the latter part of this ground is that the agreed facts say nothing at all about what was in the mind of Mr Mihailidis at various times. Rather, they focus on objective circumstances and events, not states of mind or intentions. In particular, the agreed facts say nothing about why Mr Mihailidis undertook the actions of flashing his lights and changing from lane three northbound to lane two northbound, and thereafter from lane two northbound to lane three northbound. That attribute of the agreed facts is unsurprising: Mr Mihailidis was not competent to give evidence as a result of his injuries, and, as a basal principle of evidence, other persons were not entitled to give evidence about what they believed he was thinking or feeling. 2. Nothing was put forward in oral submissions by senior counsel for the appellant to gainsay the above analysis, which formed the basis of the submissions by the Crown against this part of the ground. 3. As I have said, although the reasons for verdict certainly speak at length of what may have been in the mind of Mr Mihailidis, the agreed facts said nothing about that subject. It follows that those portions of the ground that assert that findings of fact by his Honour about states of mind of Mr Mihailidis were contrary to the agreed facts should be rejected. 4. As for the other portion of this ground, I do not accept that the reasons for verdict find that the appellant committed the offence of negligent driving causing death on the basis of a minute temporal analysis of the movements of the two vehicles, and a comparison of their relative positions at precise times. As senior counsel for the appellant conceded in oral submissions, that would have been impossible in any event, bearing in mind that the Corolla was likely travelling in the vicinity of 110 km/h, and the tanker, although moving very slowly, was not stationary. 5. As I have said, the simple proposition of the prosecution that his Honour accepted was that, in all the circumstances that I have recounted, and even accepting that the impairment of vision and driving of Mr Mihailidis may have substantially contributed to the collision, it was negligent of the appellant to implement his decision to drive out of the U-turn bay and manoeuvre the tanker into lane three northbound whilst the Corolla was approaching (at high speed) from the south. 6. In my opinion, even accepting (for the sake of argument only) that there were discrepancies between the chronology of the Agreed Facts and the chronology of the reasons for verdict as to precisely when the Corolla changed lanes back to lane three northbound, relative to the position of the tanker, any such divergences would have been completely extraneous to the factual basis upon which his Honour returned a verdict of guilty on the primary count. 7. Finally, as for asserted inconsistency between [42] and point 12 within [45], to my mind there is no such inconsistency. The former set out an assumption that his Honour was prepared to make in favour of the appellant; namely, that he was entitled to assume that the driver of the Corolla would give way. The latter sets out that a reasonable and prudent driver would have foreseen the possibility that, in trying to do just that, the driver of the Corolla may have ill-advisedly moved not into lane one northbound, but into lane three northbound. 8. For those reasons, I would not uphold any aspect of ground three of the appeal against conviction. Ground four The trial Judge erred in the construction of Road Rules 78 and 79 of the Road Rules 2008 (repealed). Submissions of the appellant 1. At the hearing, senior counsel for the appellant accepted that this ground, although expressed in the written submissions as a "true alternative", was very largely logically subsumed in the first ground. Nevertheless, because it was not formally withdrawn, I consider that it should be dealt with. 2. The argument was as follows. 3. First, it was submitted that the Road Rules required Mr Mihailidis to keep out of the path of the tanker once it was flashing its emergency lights. That was based on an analysis of the Road Rules as they were at the time of the collisions. 4. Rules 78 and 79 of the Road Rules, as at the date in question, were as follows: 78 Keeping clear of police and emergency vehicles (1) A driver must not move into the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm. Maximum penalty: 20 penalty units. Note. Approaching, emergency vehicle and police vehicle are defined in the Dictionary. (2) If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely. Maximum penalty: 20 penalty units. (3) This rule applies to the driver despite any other rule of these Rules. 79 Giving way to police and emergency vehicles (1) A driver must give way to a police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm. Maximum penalty: 20 penalty units. Note 1. Emergency vehicle and police vehicle are defined in the Dictionary. Note 2. For this rule, give way means: (a) if the driver is stopped—remain stationary until it is safe to proceed, or (b) in any other case—slow down and, if necessary, stop to avoid a collision, —see the definition in the Dictionary. (2) This rule applies to the driver despite any other rule of these Rules that would otherwise require the driver of a police or emergency vehicle to give way to the driver. [bolding and italics in original] 1. That leads one to the Dictionary of the Road Rules. The Dictionary of the Road Rules, as at the date in question, defined "an emergency vehicle" as follows: … emergency vehicle means any vehicle driven by a person who is: (a) an emergency worker, and (b) driving the vehicle in the course of his or her duties as an emergency worker. Note 1. Emergency worker is defined in this Dictionary, and vehicle is defined in rule 15. Note 2. Drive includes be in control of—see the definition in this Dictionary. Note 3. This definition is not uniform with the corresponding definition in the Dictionary of the Australian Road Rules. However, the Australian Road Rules allow another law of this jurisdiction to make provision for what is an emergency vehicle for a provision of the Australian Road Rules. Different definitions may apply in other Australian jurisdictions. [bolding and italics in original] 1. That leads one to the definition of "emergency worker". The same Dictionary defined "emergency worker" as follows: … emergency worker means: (a) a member of the Ambulance Service rendering or providing transport for sick or injured persons, or (b) a member of a fire brigade, rural fire brigade or the State Emergency Service providing transport in the course of an emergency, or (c) a person (or a person belong to a class of persons) approved by the Authority. Note 1. Authority is defined in the Act. Note 2. This definition is not uniform with the corresponding definition in the Dictionary of the Australian Road Rules. However, the Australian Road Rules allow another law of this jurisdiction to make provision for who is an emergency worker for a provision of the Australian Road Rules. Different definitions may apply in other Australian jurisdictions. [bolding and italics in original] 1. As for the meaning of the phrase "in the course of an emergency", reliance was placed on the Macquarie Dictionary definition, and also the definition to be found in the Rural Fires Act 1997 (NSW), which in turn leads one to the definition that was to be found in s 4 of the State Emergency and Rescue Management Act 1989 (NSW). 2. The Macquarie Dictionary definition was as follows: "an unforeseen occurrence; a sudden and urgent occasion for action". 3. The definition to be found in the former statute was as follows: … emergency see section 4. …. 4 Definitions (1) Definitions are contained in the Dictionary at the end of this Act. Note. Expressions used in this Act (or in a particular provision of this Act) that are defined in the Interpretation Act 1987 have the meanings set out in that Act. (2) Words and expressions used in the State Emergency and Rescue Management Act 1989 and in this Act have the same meanings in this Act as they have in the 1989 Act. (3) Subsections (1) and (2) do not apply to the extent that the context or subject-matter otherwise indicates or requires. Note. Some expressions defined in the State Emergency and Rescue Management Act 1989 that are used in this Act are: … emergency means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which: (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response. [bolding and italics in original] 1. That leads one to the definition in the latter statute, which was as follows: 4 Definition of "emergency" (1) In this Act: emergency means an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which: (a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or (b) destroys or damages, or threatens to destroy or damage, property in the State, being an emergency which requires a significant and co-ordinated response. (2) For the purposes of the definition of emergency, property in the State includes any part of the environment of the State. Accordingly, a reference in this Act to: (a) threats or danger to property includes a reference to threats or danger to the environment, and (b) the protection of property includes a reference to the protection of the environment. [bolding and italics in original] 1. It was said, in short, that it was an error for his Honour to find that, as a matter of definition, an emergency must have some aspect of urgency to it. Indeed, it was said that such an interpretation would lead to absurdities. To the extent that it was found by his Honour that the return of the appellant to the weighbridge was not an emergency, as defined, that was said to have led to error in the assessment of the collision, and whether the appellant was driving negligently in the seconds leading up to it. 2. Secondly, I understood reliance to be placed also on r 306 of the Road Rules as it then was, in resistance to proof of the primary offence and the secondary offence. At the time, that rule was as follows: 306 Exemption for drivers of emergency vehicles A provision of these Rules does not apply to the driver of an emergency vehicle if: (a) in the circumstances: (i) the driver is taking reasonable care, and (ii) it is reasonable that the rule should not apply, and (b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm. Note. Emergency vehicle and motor vehicle are defined in the Dictionary. 1. Again, the meaning of "an emergency vehicle" was said to lead one back along the chain of the definitions that I have set out above. 2. In summary, the two points underpinning reliance upon all of those rules, as I understood them, were as follows. 3. First, if it be the case that Mr Mihailidis had a specific obligation to avoid the tanker pursuant to rr 78 and 79 of the Road Rules, that should have informed whether the prosecution had proven either of the offences. 4. Secondly, from an opposite starting point, but with the same ultimate destination, it was said that, if the appellant was excused by r 306 of the Road Rules from compliance with a road rule (in the circumstances of him taking reasonable care, and in circumstances of it being reasonable for the rule not to apply), then that was relevant to the proof of guilt of both offences as well. Determination 1. Turning to my determination of this ground, I do not accept that "an emergency" can be an event that does not have at least some aspect of urgency to it. I say that not only as a matter of ordinary English usage. I say that also because, with respect, I accept the submission of the Crown that the interpretation for which the appellant contends would lead to absurdities; for example, a tanker being driven to an event that was patently not urgent – such as a routine meeting of volunteer firefighters – could nevertheless be judged as travelling to an emergency, with consequent modification to the operation of the Road Rules. In short, I do not consider that his Honour committed an error in interpreting the various rules upon which the appellant relied in a way that did not assist the appellant, on the simple basis that his return to the weighbridge was not, in truth, an emergency as defined by statute. 2. And in any event, even assuming (for the sake of argument only) that it was incumbent upon Mr Mihailidis to avoid colliding with the tanker, because of the application of rr 78 and 79 of the Road Rules, that would not mean that the driving of the appellant was not negligent. Nor would it mean that that negligent driving did not cause the death of the deceased. In support of those two propositions, I repeat the analysis that I have provided above with regard to ground one. 3. Finally, as senior counsel for the appellant conceded at the hearing, r 306 of the Road Rules need not be relied upon by the appellant if, in truth, he was not driving negligently, for the simple reason that the offence would not have been proven in any event. Conversely, if the appellant was driving negligently, then he was not taking reasonable care, in accordance with r 306 of the Road Rules. 4. In short, even accepting the statutory interpretation for which senior counsel for the appellant contended of r 306 of the Road Rules, it would not avail the appellant in a practical sense. 5. For all of those reasons, I would not uphold ground four. Proposed grounds of appeal against sentence 1. Leave was sought to argue the following grounds of appeal against sentence: (5) The sentencing Judge failed to take into account a relevant consideration. (6) His Honour erred in his construction of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. (7) The sentence is manifestly excessive. Nature of appeal against sentence 1. As I have said, each offence was a wholly summary offence, being dealt with at a hearing before a District Court Judge by way of s 166 of the Criminal Procedure Act. 2. The parties were agreed that an application for leave to appeal against sentence – again, pursuant to ss 5AD and 5AA of the Criminal Appeal Act – to this Court in those circumstances should be approached in the same way that an appeal pursuant to s 5(1)(c) of the Criminal Appeal Act should be approached. In other words, it should be seen as founded on the identification of error at first instance, including but not limited to the errors spoken of in House v The King (1936) 55 CLR 499; [1936] HCA 40. Discussion of grounds of appeal against sentence Ground five The sentencing Judge failed to take into account a relevant consideration. Submissions of the appellant 1. This ground was the subject of written submissions only. I shall paraphrase those submissions and, for the convenience of the reader, interleave the portions of the remarks on sentence to which they refer. 2. The submissions commence by asserting that [11] of the remarks on sentence is a repetition of the substance of [42] of the reasons for verdict. The former paragraph is as follows: "[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." 1. It was said that "the substance of the propositions does not seem to have been taken into account by his Honour" on sentence. It was also said that "they appear to be contradicted by the propositions" in [1] and the second proposition in [18] of the remarks on sentence. 2. The former paragraph of the remarks on sentence is as follows: "[1] 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." 1. The latter paragraph of the remarks on sentence, in its entirety, is as follows: "[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." 1. It was said that those two paragraphs "are directly relevant to his Honour's statement at [14] that the level of urgency in fact required of [the appellant] to get back to the weighbridge is directly relevant to the objective gravity of the offences. See also [16]." 2. The former paragraph of the remarks on sentence was as follows: "[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." 1. The latter paragraph of the remarks on sentence was as follows: "[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." 1. The written submissions go on to say that "[i]n failing to take into account the important matters agreed by the parties, his Honour appears to have misjudged the objective seriousness of the s 42 offence. His Honour has superimposed upon the findings at trial a degree of wilful or reckless behaviour rather than a simple, albeit negligent, misjudgement. That has resulted in a sentence that is more severe than warranted in all the circumstances." Determination 1. In my opinion, the various paragraphs of the remarks on sentence relied upon by the appellant are unexceptionable. They do not show that his Honour rejected the facts agreed between the parties; as I have said, the latter focused on objective facts and circumstances. Nor are the extracted paragraphs contradictory, or internally inconsistent. They simply show that his Honour well appreciated that the gravamen of the primary offence was nothing more than the decision to pull out from the U-turn bay in all of the circumstances, rather than to wait approximately 11 seconds until the oncoming motor vehicle had passed. The paragraphs relied upon also show that his Honour maintained the assessment that, on the evidence, there was no urgency in returning to the weighbridge to the north. None of that, in my respectful opinion, demonstrates any error of fact or law. 2. I would reject ground five. Ground six His Honour erred in his construction of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999. Submissions of the appellant 1. Senior counsel for the appellant submitted that the sentencing judge had erred in applying a construction of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Crimes (Sentencing Procedure) Act) that effectively limited considerations of remorse to admissions of guilt. The ground focused very largely on [20] of the remarks on sentence. 2. Essentially, it was said that his Honour was incorrect in not giving any reflection in the sentence to remorse, in the absence of the appellant accepting responsibility. His Honour found no evidence of the appellant's acceptance of responsibility, and, as a result, it was submitted, erroneously took no account of remorse in mitigation of sentence. 3. Senior counsel for the appellant submitted that his Honour erred for two reasons. 4. First, it was submitted that s 21A(3)(i) of the Crimes (Sentencing Procedure) Act does not expressly refer to the acknowledgement of guilt as a consideration in the sentencing calculus. 5. Secondly, senior counsel contended that the meaning of "responsibility", in the context of sentencing, encompassed a broader range of relevant human experience than acknowledgement of criminal guilt. Determination 1. The salient portions of the statutory provision under consideration are as follows: 21A Aggravating, mitigating and other factors in sentencing (1) General In determining the appropriate sentence for an offence, the court is to take into account the following matters: (a) the aggravating factors referred to in subsection (2) that are relevant and known to the court, (b) the mitigating factors referred to in subsection (3) that are relevant and known to the court, (c) any other objective or subjective factor that affects the relative seriousness of the offence. The matters referred to in this subsection are in addition to any other matters that are required or permitted to be taken into account by the court under any Act or rule of law. … (3) Mitigating factors The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows: … (i) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both), … … [bolding in original] 1. The entirety of [20] of the remarks on sentence is as follows: "[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 a mitigating feature 'remorse' but only where he accepts responsibility. I do not accept that has been demonstrated by Mr Wells." 1. This ground can be determined concisely. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act sets out, by way of its two sub-paragraphs, the preconditions for the taking into account of the mitigating factor of remorse by a sentencing Magistrate or Judge. 2. It is certainly true that there was evidence before the sentencing judge that the appellant had been affected by what had occurred. But there was and is no remorse demonstrated by the appellant for the offence. That is inherent in the fact that, at the commencement of the trial by jury, the appellant pleaded not guilty to the greater offence of which he was found not guilty. At the commencement of the subsequent hearing before his Honour, the appellant entered two pleas of not guilty. And up until the conclusion of the hearing of the appeal, the appellant disputed that he committed the two summary offences of which he was convicted, and instructed a solicitor, junior counsel, and senior counsel to make detailed and varied submissions in support of that proposition to this Court. Nothing has changed since this Court reserved its judgment. 3. Of course, the appellant was perfectly entitled to enter those pleas, and to exercise his right to appeal. And, as the extracted paragraph from the remarks on sentence demonstrates, the sentencing judge accepted that the appellant deeply regretted, in a general way, the fact that a person died in the early hours of 19 October 2012. But there is no evidence that he is remorseful for the fatal offence that he committed, in the sense of accepting responsibility for it, and regretting what he himself had done. 4. For that reason, the paragraph of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act that founds this ground has no application. Nor does the analysis of that paragraph by the sentencing judge demonstrate any error. 5. I would dismiss ground six. Ground seven The sentence is manifestly excessive. Submissions of the appellant 1. Despite the nature of this ground, the bulk of the written submissions of the appellant in support of it focused on the reasoning of his Honour. 2. It was said that, although the sentencing judge expressed the view that the primary offence did not require the "ultimate sanction" of full-time imprisonment, nevertheless a finding in that regard was an essential precondition for assessing the suitability of the appellant for an ICO. 3. It was also said that general deterrence was given separate force, or at least inappropriate primacy, when it should in fact have been merely part of the instinctive sentencing synthesis. 4. Finally, it was said that there had not been compliance with s 5(1) of the Crimes (Sentencing Procedure) Act, in that his Honour should not have imposed a sentence of full-time imprisonment unless satisfied that no alternative disposition was appropriate. Determination 1. Turning to my determination of this ground, and focusing – as one must with regard to such a ground – on the sentence actually imposed, the negligent driving of the appellant substantially contributed to the death of a human being. That death was, in one sense, caused by the refusal of the appellant to wait a mere 11 seconds until another vehicle had driven past him. The maximum penalty for the offence was, in the circumstances, full-time imprisonment for 18 months. No remorse was demonstrated by the appellant, and of course there could be no utilitarian discount after the hearing before his Honour. Although free of criminal convictions, the appellant was not free of traffic matters, including a previous conviction for negligent driving, albeit many years previously. The sentence imposed consists of the appellant being subject to conditional liberty for 12 months, whereby he is subject to a reasonably intensive program of rehabilitation. As this Court has said on another occasion, although that is a sentence of "imprisonment", it is also a sentence that unquestionably has a large degree of inherent leniency built into it: R v Pogson (2012) 82 NSWLR 60 at [106]. 2. Nothing placed before this Court persuades me that the sentence actually imposed was unavailable to the discretion of his Honour. To the contrary, on one view it could perhaps be regarded as a rather lenient sentence. 3. I would reject ground seven. Conclusion 1. Although leave should be granted as necessary, I do not consider that any ground of appeal against conviction should be upheld. 2. Although I consider that leave should be granted with regard to all of the proposed grounds of appeal against sentence, I do not consider that any ground of appeal against sentence should be upheld either. Proposed orders 1. I propose the following orders: (1) Leave to appeal against conviction granted to the extent necessary. (2) Appeal against conviction dismissed. (3) Leave to appeal against sentence granted. (4) Appeal against sentence dismissed. ********** 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: 13 October 2017