R v Tinker [2019] NSWDC 427

District Court New South Wales

Medium Neutral Citation: R v Tinker [2019] NSWDC 427 Hearing dates: 4 April 2019; 18 April 2019 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Criminal Before: Judge W Hunt Decision: Sentenced to an overall term of imprisonment of 3 years and 3 months with an effective non-parole period 21 months. In each case the offender is disqualified from driving for 2 years. Catchwords: CRIMINAL LAW – Sentence – Dangerous driving occasioning death – Dangerous driving cause bodily harm by wilful neglect – Remorse shown. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act Cases Cited: Kerr v The Queen [2016] NSWCCA 218 R v Jarad Smith [2016] NSWCCA 75 R v Melissa McKeown [2013] NSWDC 22. R v Pullen [2018] NSWCCA 264. R v Whyte (2002) 55 NSWLR 252 l Category: Sentence Parties: The Crown Steven Michael Tinker Representation: Counsel: Ms L Rowan - The offender

Solicitors: Ms J Turner – The Crown File Number(s): 2016/206628

Judgment 1. HIS HONOUR: Steven Michael Tinker is before the Court for sentence in relation to three matters which were the subject of verdicts of guilty in a jury trial conducted before me in January of this year. The principal offences is an offence of driving in a dangerous manner occasioning the death of Sandra Scanes in breach of s 52A(1)(c) of the Crimes Act 1900 for which a maximum penalty of ten years has application, no standard non‑parole period has an application. 2. The other two charges are in similar terms to each other and were counts 3 and 4 on the indictment, the dangerous driving being count 1. Those two offences provide that Mr Tinker caused bodily harm by wilful neglect to each Michael Sandiford and Pamela Sandiford in breach of s 53 of the Crimes Act 1900 for which the maximum penalty in each regard is two years' imprisonment. The record ought to reflect that Mr Tinker was also charged with dangerous driving occasioning grievous bodily harm to Michael Sandiford which was count 2 to which count 3 was the alternative and Mr Tinker, for completeness of the record, was acquitted of that count. 3. The sentence proceedings including the delivery orally of three victim impact statements and me reading a fourth by Ms Sandiford highlighted the enormity of the tragedy that has seen a woman of mature years, but still taken from her family well before her time. That loss has so clearly caused considerable grief and heartache. The material tendered during the proceedings also highlights the offender's lack of any criminal antecedents and a number of family circumstances that are particular to him. Notwithstanding that he does not accept the legal basis on which the prosecution maintained that he was guilty of the charge, he has always expressed considerable remorse for the loss of Ms Scanes and his part in it. 4. In matters such as this judges are asked to perform virtually an impossible equation. No human life can ever be equated with a period of imprisonment. No gaol term can return a loved one and life should never be measured simply by the punishment meted out to an offender; R v Jarad Smith [2016] NSWCCA 75 per R A Hulme at [18] endorsing remarks made in R v Melissa McKeown [2013] NSWDC 22. 5. The sentence that I will impose in the principal offence does not and cannot measure the value of Sandra Scanes' life. Instead it reflects the sentencing discretion informed by proper principle. It must reflect an adequate punishment recognising the harm done and denouncing the conduct of the offender. The sentence must also reflect the objective seriousness of the offences, the offender's moral culpability, his prospects of rehabilitation and the likelihood or unlikelihood of future offending. In determining the facts upon which I sentence Mr Tinker I am bound by the jury verdict. I must resolve any dispute in light of the evidence adduced at trial although such resolution by me is limited to matter collateral to the elements of each of the offences. 6. At about 4.30am on 16 May 2016 the truck in which Mr Tinker was travelling and driving collided with the rear of a vehicle being driven by Mr Sandiford with Ms Sandiford in the front passenger seat and Ms Scanes in the rear passenger seat. At a time shortly before the collision which also resulted in actual bodily harm to both of Mr and Ms Sandiford and occasioned Ms Scanes' tragic death, the offender was travelling at or below the prescribed speed limit. His truck was travelling in the middle lane behind the car in which the victim's was. There were no other cars travelling in his direction and accordingly there was nothing to prevent him at any stage moving or veering left or right into the two other vacant lanes. 7. On the jury's finding, it is clear that the offender was aware that the victims' car was stationary at the lights at some distance between 500 and 350 metres from the traffic lights themselves. The conditions on the morning were dry, clear and well lit by numerous street lights, all the relevant traffic lights were operating properly. The evidence discloses that Mr Tinker knew the road well and had travelled it often. The impact between the front of the truck and the back of the car in which the victims were travelling largely demolished the rear boot and passenger areas and forced the car right through the intersection and out the other side. 8. In his interview with police on the day of the accident and at trial Mr Tinker relied on deficiencies in the braking system of the truck to account for the collision. The jury's verdict necessarily rejected that account or at least considered that such evidence failed to evoke any reasonable doubt about the dangerousness of Mr Tinker's driving. In assessing the objective seriousness of an offence of this kind. I intend to principally focus on the index serious charge at count 1, although similar but lesser considerations have application in relation to counts 3 and 4. 9. The Court of Criminal Appeal of New South Wales in the guideline judgment of R v Whyte (2002) 55 NSWLR 252 lists a number of aggravating factors. Here the only aggravating factor that I can identify is under subs (i) of the matters listed at para 214 of Whyte; that is, the nature and extent of the injuries inflicted. Obviously the death of a person in this case, Ms Scanes, is a very significant injury. In the circumstances of this accident, many of the other identified features have no application; that is, the number of people put at risk by driving, the degree of speed, and I will return to that issue shortly, any evidence of intoxication or substance abuse, erratic or aggressive driving, competitive driving or showing off, the length of the journey during which others were exposed to risk. 10. In relation to that aspect, although Mr Tinker was engaged in what is a relatively lengthy driving journey, it must be understood that the part of the journey that is contemplated to aggravate his dangerous driving, was a very limited part of this journey. I resume the list: ignoring of warnings, escaping police pursuit, degree of sleep deprivation or failing to stop, none of those while factors, but for the fact of Ms Scanes' death, are relevant here. 11. Returning to the issue of speed, Ms Turner, who appeared as the Crown Prosecutor at the sentence proceedings, contended it was available for me to find consequent upon matters extrapolated in Kerr v The Queen [2016] NSWCCA 218 that it was open to me to find that the degree of speed was an aggravating circumstance. 12. It was always part of the Crown case at trial, and consistent with the finding that I have made earlier, that Mr Tinker was travelling within or at the speed limit. Kerr is authority for the proposition that there can be circumstances where travelling at the speed limit is dangerous in all the circumstances. Kerr involved a driver who was driving at the speed limit near a pelliton of cyclists and collided mortally injuring seven of them. In the circumstances of that case the Court held that even though the speed was compliant with the traffic regime it was aggravated dangerous driving in all the circumstances. 13. Of course, it will always be the case when a moving vehicle collides impermissibly with a stationary vehicle that there is a degree of speed involved in that exercise. In this case for instance, the truck was moving and the vehicle that Mr Sandiford was driving was stationary and correctly so because it was stopped at a red light. I am not persuaded, given the way the case was run or the things that the jury needed to find to find Mr Tinker guilty of the essential elements of the three charges, that it can been seen that the degree of speed was an aggravating circumstance in the way understood by Whyte or Kerr. 14. It was contended for Mr Tinker that it would be available for me to find that his inattention was momentary. If I were able to find that his inattention were momentary that would mean that his moral culpability for the offending would be very low and the objective seriousness of the offence, notwithstanding the drastic consequences, would also be low. Although it will not always be the case, many of the cases in which sentencing tribunals have been able to make determinations that inattention was momentary, that finding is linked to some factual circumstance given by the driver of the vehicle that is accepted by the tribunal of fact. 15. For instance, being distracted by a mobile phone which may make the inattention momentary but more culpable than being distracted by a view or something that is in evidence. Here there is no evidence as to what caused the inattention. I find that Mr Tinker was inattentive. He was inattentive for some period less than when he had 350 metres view of the vehicle, he was inattentive for a sufficiently long time that he failed to notice, at the relevant time, that the Sandiford vehicle was still stopped at the lights such that he had sufficient time to take evasive action by way of braking or swerving. 16. I am not in a position to find in his favour on the balance of probabilities that the inattention was momentary and I am unable to divine beyond reasonable doubt the length of the inattention other than to find that it was sufficiently long to make his driving dangerous and to make that inattention the cause of the fatal collision. I am not in the position to make any finding beyond reasonable doubt as to why it was that he was distracted. Indeed some sources of potential distraction such as his phone and the like were excluded by police as being relevant to the matter. As I have already indicated there was nothing excessive about the speed of the truck. 17. The objective seriousness of the matter, in circumstances where none of the aggravating circumstances that had been identified by the courts above, were present but for the fact of Ms Scanes' death which an essential element of the charge that was brought against Mr Tinker. I consider that the objective seriousness of the matter falls below the mid range but not to the low range. His moral culpability is not high but nor is it low. The reason for the inattention and the exact length of it will remain unknown. 18. I want to move to some matters that are personal to the offender. He has no criminal record. He has no criminal convictions of any type other than the ones that will be entered against him today. He is now 33 years of age and he was 30 years of age at the time of the offence. He has been a professional driver for most of his life and in that regard has driven far more kilometres per year than the average driver. He does not have an unblemished traffic history. 19. Perhaps in the way of these matters, Ms Rowan who appeared for him contended that it was a limited record in the circumstances of his professional driving and Ms Turner characterised it as being a bad record that would serve to disentitle him to leniency. Of course in terms of his absence of criminal records, that entitles him to some leniency, but it is observed that many people of prior good character are sentenced by these courts for these offences; that is because people without criminal antecedents are well capable of driving dangerously. 20. Mr Tinker was first licensed with a provisional licence in 2004. In 2004 and 2005 he had three offences which were probably the three most serious offences on his record as a very young man before the index matters. He was dealt with for speeding at more than 15 kilometres an hour for committing a burnout and for negligent driving. Thereafter, although he has some entries for driving whilst using a handheld phone in a range of time between 2008 and 2011. More recently, in 2011 he was dealt with for disobeying a traffic light, 2012 for not reversing safely, and for failing to give particulars after an accident and in 2014 he was dealt with for two further infringements in relation to speeding and not keeping a safe distance while overtaking. 21. His final offence, before this matter, in 2014, was an exceeding the speed limit offence between 10 and 20 kilometres an hour. As I have said, it is not an unblemished history but for a professional driver, in sitting in this Court and once upon a time in the Local Court, I have seen far worse records from professional drivers. It is not a record that he can rely on to show that he has always been observant of the road rules but it is not a record that, in my view, significantly disentitles him to leniency. 22. As part of the Crown case the sentencing assessment report prepared by Vincent Fitzsimmons, who is a senior Community Corrections officer with the Wollongong Community Corrections office, was tendered. That report was prepared after interviews both with Mr Tinker with his partner, contact with his employer, his general practitioner and reviewing some of the relevant documents in the case. He was assessed by that professional author as having a low risk of reoffending after being under the subject of some actuarial tests. Relevantly he expressed to the author of that report his remorse and empathy for the victims of his offending behaviour notwithstanding that he continued to maintain that the accident occurred due to the truck's faulty brakes. 23. The author of the report noted that Mr Tinker was suffering from depression and anxiety which had increased as a result of the accident. The report writer confirmed that had been referred by his general practitioner to commence some psychological therapy with his psychologist. There is some medical material before the Court showing that Mr Tinker has a severe scoliosis which affects his spine and pelvis, although a congenital condition, has worsened as the result of an accident. 24. Deborah Baumann, psychologist, speaks of treatment that she has provided to Mr Tinker as a result of his assessment as being in the extremely severe range of depression, in the moderate range of both stress and anxiety and having a score of 2.3 on an index of post traumatic stress where 2 is moderate and 3 is severe. Ms Baumann describes Mr Tinker as "replaying the accident trying to analyse and imagining whether alternate actions were possible." 25. A reference was provided by Jason Holland, somebody who has known Mr Tinker for about six years and is described as a close friend. He describes him as somebody who genuinely loves his children, his partner and his family and his friends and that he is a much loved father, partner and friend. A significant font of personal information about Mr Tinker is found in the detailed statement that his partner provided to the Court. It should be noted that the author of that document Charissa Smith was not required for cross‑examination by the Crown on her detailed affidavit. It is clear it is always the case that if somebody is to be imprisoned and they are a vital member of a household that imprisonment will wreak havoc with a family's life; that will be the more so in Mr Tinker's case because he is the main income earner in the household. 26. The condition of the three children in the care of Mr Tinker and Ms Smith are such that Ms Smith is required to be a hands‑on mother. Most particularly, one of their children has a severe intellectual disability which manifests with other behavioural problems. Although that child is 11 years old, he has a mental age much younger than that and struggles with all sorts of everyday activities, such as, tying shoelaces, getting dressed, self‑care and the like. That child is in a special needs class at school and requires medication to help with his disorders. It is an artefact of that child's particular set of disabilities that changes, even of the smallest kind, to his routine have great effects on him. He has a range of allied health practitioners who work with him because of his difficulties including a physiologist, a behavioural therapist, a speech therapist, a school counsellor and an occupational therapist. 27. Ms Smith talks about the deterioration in her partner's physical and mental state since the accident although she indicates that he has never wavered from his belief that the accident was caused by his brakes not working. The way Ms Smith expresses it, and I accept is, "I have seen how Steven has struggled enormously with the guilt of what happened on the day of 16 May 2016." Those expressions of remorse are echoed, as I have already said, in the sentencing assessment report. It is clear that in the balance of his life, putting his driving very particularly on this occasion and just more generally to one side, that Mr Tinker is devoted family man who is relied on by those close to him and within his family circle. 28. All the purposes of sentencing are set out at s 3A of the Crimes (Sentencing Procedure) Act and I averted to many of them at the beginning of this judgment. In these matters the Court is called on from time to time to sentence people who are otherwise law abiding citizens for periods of imprisonment notwithstanding an isolated fall from grace, that is because the superior courts have repeatedly said that there is a need to deter people generally from behaving in the way that Mr Tinker did on this occasion driving dangerously and taking the life of another human being. The way the courts express it is that that kind of behaviour calls for condign punishment. 29. Here Mr Tinker was charged and found guilty of three different offences. The other two offences have, in their font, the same piece of driving although obviously the bodily harm, while not insignificant to either of them that was occasioned to Mr Sandiford and, more particularly, to Ms Sandiford was nothing like the great damage that was occasioned to Ms Scanes. There is also always the need to specifically deter an offender like Mr Tinker from behaving in the way that he did. Denunciation of the conduct, punishment and protection of the community are always important aspect of a sentencing exercise like this. 30. Here, although the family circumstances and the impact of Mr Tinker's inevitable imprisonment will be quite extreme, it is clear that to change the length of the sentence or to have the sentence served in a way short of full‑time imprisonment there needs to be what is described by intermediate courts as exceptional circumstances. The bar to find exceptional circumstances is very high and I am persuaded in this case that the affect on Ms Smith and her children, notwithstanding that it will be quite extreme, does not meet that test. Instead it, with all of the other matters, will become part of the things that I take into account in the instinctive synthesis that is sentencing. 31. It was put by Ms Rowan that I could deal with the matters by way of Mr Tinker serving a sentence to be served in the community. I have had regard to the way the Court of Criminal Appeal analysed the intensive corrections order regime in R v Pullen [2018] NSWCCA 264. Shortly put, the objective seriousness of the offending means that a sentence of greater than two years is called for in relation to the principal offence. What that means is that there is no power in this Court to properly consider an intensive corrections order and Pullen articulates some of the reasons why that would not be appropriate in the case in which I have made the findings that I have. 32. I need to say something briefly about the two other matters each of which have a maximum period of imprisonment of two years. The two other offences are far less serious than the index offence and had Mr Tinker faced those two charges alone, without the more serious offence (in breach of s 52A(1)(c) of the Crimes Act) it may have been that those matters would have been dealt with in a way that did not involve full‑time imprisonment. I am ultimately persuaded that those matters ought attract relatively short periods of imprisonment, given there are three charges that were temporally linked, but three separate offences nonetheless. I need to have regard to principles of totality and consider partial accumulation and partial concurrence. 33. It will become obvious when I announce the sentences that there is a total concurrence between the two sentences that relate to the s 53 offences and a very modest level of partial accumulation in relation to the sentence that flows in relation to count 1. I have determined, having formed the view that it is inevitable that there be a sentence to be served by way of full‑time imprisonment, and turned my mind to whether it is appropriate to find special circumstances. 34. In the circumstances in which I consider that Mr Tinker will need an extended period of support on parole once he is released from prison to deal with his psychological difficulties, it is also his first time of imprisonment, I also need to have regard to find special circumstances for the purposes of totality and accumulation. I am not persuaded, that even though he has his significant health difficulties with his scoliosis, that there is evidence that persuades me that his time in custody will be made more onerous because of that. and Indeed, like the circumstances on the effects on his family, that factor is part of the general mix of matters that I take into account in arriving at the appropriate sentences. 35. Stand up please, Mr Tinker. 36. In relation to count 1, count 3 and count 4 you are convicted. 37. In relation to counts 3 and 4, on each of those matters, you are sentenced to fixed terms of imprisonment of six months each, to commence today on 18 April 2019 and those sentences will expire on 17 October 2019. 38. In relation to count 1 which is the breach of s 52A of the Crimes Act involving the death of Sandra Scanes you are sentenced to a period of imprisonment of three years to date from 18 July 2019 and to expire on 17 July 2022. 39. Having found special circumstances, there is a non‑parole period of 18 months which means that the earliest date of possible release to parole will be 17 January 2021. 40. Each of the matters provide for an automatic period of disqualification. In the case of the drive manner dangerous it is five years but it can be reduced to 12 months and in the other two cases it is an automatic disqualification of three years that is amenable to being reduced. The disqualification in relation to each of the three counts will be two years. 41. The way the motor traffic legislation operates is that the two year disqualification will commence from the date of Mr Tinker's release from custody. One of the reasons I have reduced the periods of disqualification is because Mr Tinker, although I know he has started to work in a way that is unrelated to driving and has not been driving, his vocation has been professional driving and I have taken that into account in reducing the automatic disqualifications. 42. In relation to each of the matters that is before the Court on a s 166 certificate, I take note of the fact that those matters are backup matters, and all of those matters I will mark as withdrawn and dismissed. 43. That is the best way that I can balance all the competing considerations in what I would describe as a very difficult sentencing exercise. You will have to go downstairs now, Mr Tinker.