District Court New South Wales Medium Neutral Citation: R v Rummukainen [2019] NSWDC 452 Hearing dates: 17 May 2019 Date of orders: 17 May 2019 Decision date: 17 May 2019 Jurisdiction: Criminal Before: Buscombe DCJ Decision: See paragraph [29] Catchwords: CRIME — Driving offences — Dangerous driving occasioning death — "In a manner dangerous to another person or persons" — sentence of imprisonment SENTENCING — Subjective considerations on sentence — Special circumstances Legislation Cited: Crimes (Sentencing Procedure) Act Cases Cited: Muldrock v The Queen (2011) 244 CLR 120 R v Whyte (2002) 55 NSWLR 252 Category: Sentence Parties: Director of Public Prosecutions (Crown) Risto Petteri Rummukainen (Offender) Representation: Counsel: N Keay (Crown) S Boland (Offender) Solicitors: S Knox (Crown) J Maher (Kami Saeedi Law) File Number(s): 2017/00029865 SENTENCE 1. HIS HONOUR: The offender was found guilty after trial by a jury of a single charge that on 27 November 2016 at Bellmount Forest he drove a motor vehicle, namely, a Toyota HiLux utility registration number DJS 47Q, in a manner dangerous to another person or persons whereby the vehicle was involved in an impact as a result of which the death of Alexander Henry was occasioned. That is an offence under s 52A(1)(c) of the Crimes Act and has a maximum penalty of ten years' imprisonment. 2. These being sentence proceedings after trial, I am required to find the facts upon which the offender is to be sentenced consistent with the verdict returned by the jury. To the extent that I find facts adverse to the offender, I must be able to find those facts proved beyond reasonable doubt. I consider the following facts are established by the evidence consistent with the jury's verdict beyond reasonable doubt. The Facts 1. On 27 November 2016 the offender was working as a plasterer at the premises of a Mr Scott Riley at Gunning. He drank one mid strength beer at lunchtime and took another beer away from where he ate lunch at Mr Riley's premises. Given the blood alcohol reading obtained from the offender's blood sample taken at 6.37pm that day, it is established beyond reasonable doubt that after lunch the offender consumed further alcohol. I am not able to determine on the evidence how much more alcohol the offender consumed or the timing of his consumption of that alcohol prior to the impact with the deceased's vehicle. I will return to the issue of the offender's consumption of alcohol shortly. 2. By around 4pm the offender had left the premises at Gunning in his Toyota HiLux. The distance from Mr Riley's premises to the site of the impact with the deceased's vehicle was approximately 20.5 kilometres. Around 4.50pm Mr Jason Alchin was travelling in a southerly direction on the Gundaroo Road towards Gundaroo and Canberra, having visited his grandparents in Gunning. The weather was sunny and visibility clear. He observed in his rear view mirror the offender's HiLux vehicle which was travelling at a distance behind him cross onto the wrong side of the road and collide head-on with a vehicle coming in the opposite direction as the offender tried to veer back onto the correct side of the road. 3. The vehicle that the offender collided with was the vehicle driven by the deceased, Mr Alexander Henry, being a Hyundai sedan. There was no issue in the trial that Mr Alchin's evidence was an accurate description of the driving of the offender as at the time of the impact. Other evidence given by police as to an analysis of the crash site was consistent with Mr Alchin's evidence that the offender had been on the wrong side of the road and had attempted to swerve back onto the correct side of the road when the impact occurred. 4. There is no suggestion in the evidence that the offender was not complying with the applicable speed limit as at the time of the collision. The deceased tragically died, it would seem on the evidence, as at the time of the impact of the two vehicles. The offender suffered certain injuries as a consequence of the impact. He was taken to Canberra Hospital and remained in hospital until 9 January 2017. His injuries included a fracture to his right hip that required surgery, fractures to his ribs, soft tissue injuries to his right leg and ankle. He also suffered symptoms consistent with retrograde amnesia. 5. The offender, when interviewed by the police, had very little recollection of the afternoon of the collision. He told that police that he remembered working at a job in Gunning but did not remember leaving the job. He said he had a vague memory of the accident and seeing the deceased slumped on the steering wheel and then waking up in hospital. The offender said to the police that he was familiar with the road where the collision occurred. He told the police he had no memory of drinking prior to the collision and that he had, in effect, slept appropriately the night before. 6. There was evidence before the jury by way of the mobile phone records of the offender which indicated that he had been using his mobile phone at 4:37:45pm for a period of 589 seconds, being a little under ten minutes. That call, therefore, ended at 4:47:14pm. The offender's father's evidence was that the call reflected a conversation he had with the offender which came to a normal end and that the offender spoke normally to him on the phone. Given the timing of Mr Alchin's call to triple-0, which was at 4.50pm, and his evidence that he made that call within 30 seconds of seeing the impact, I am unable to be satisfied beyond reasonable doubt that the offender was in some way distracted by his mobile phone as at the time he crossed onto the wrong side of the road and at the time of the impact. 7. I am satisfied beyond reasonable doubt that about two minutes prior to the impact the offender was using his mobile phone to speak to his father. I am satisfied beyond reasonable doubt that the offender's phone had not been paired with his vehicle so that it could be used through the phone system in his car when I have regard to the evidence called in the trial. I am also satisfied that there was no hands-free bracket in the car in which the phone could be placed. I accept that he was using a smartphone on the evidence; however, when I have regard to the whole of the evidence about the phone use I am satisfied that at some point during that journey he was touching his mobile phone. For how long I cannot say. 8. The evidence concerning the offender's level of alcohol in his blood sample and what can be inferred from that as to his blood alcohol level as at the time of the impact was an issue in the trial that, in effect, dominated it. The Crown called Dr Judith Perl on that issue and the offender called Professor Macdonald Christie. The evidence of Mr Alchin, supported by the timing of his triple-0 call to report the collision, was to the effect that the collision occurred shortly before 4.50pm. The blood sample was taken from the offender at 6.37pm. 9. While there was a dispute between Dr Perl and Professor Christie as to both the method of calculation and the result of any such calculation as to the offender's likely blood alcohol as at the time of the collision, by the end of their respective evidence both agreed that the offender may have been under the .05 prescribed content of alcohol limit and that he might have been at or above that level. Given the overall effect of their evidence, I cannot find beyond reasonable doubt that the offender was at or above the .05 prescribed content of alcohol limit as at the time of the collision. 10. Both experts agreed that the blood alcohol level that was detected as at 6.37pm meant that the offender must have consumed more than the single beer which Mr Riley said he saw the offender consume around lunchtime and the beer that Mr Riley saw the offender take away from the area where lunch was consumed. There was no challenge, however, to Dr Perl's evidence that recent research in relation to the effect of alcohol upon human beings is to the effect that there will be some impairment of skills and functions of a person with any level of alcohol in their blood, even if that level is below the limit of .05 set by the legislature. 11. In these circumstances, I am satisfied that there had been some impairment of the offender's driving skills due to the alcohol he had consumed that afternoon, but I am not able to say to what degree. I am not able to find beyond reasonable doubt what caused the offender to be on the wrong side of the road as at the time of the impact with the deceased's vehicle. The evidence of him working quite hard that day given by Mr Riley and the offender's consumption of alcohol that day strongly suggest that it was a combination of tiredness and the effect of alcohol that may have led him to be on the wrong side of the road at that time although, as I say, I am unable to make that finding beyond reasonable doubt. I consider that the evidence in the trial was to the effect that the road concerned was a fairly typical country road, having a single lane on each side. The evidence was that it was a fine afternoon and there were no visibility issues. Assessment of Objective Seriousness 1. I turn then to my assessment of the objective seriousness of the offence. The factors to consider when assessing the objective seriousness of a dangerous driving causing death offence were discussed in the guideline judgment of R v Whyte (2002) 55 NSWLR 252. Here the injuries suffered by the victim, of course, caused his tragic death. There was no element of speed but there was a level of impairment of driving skills due to alcohol consumption although, as I say, I cannot determine to what degree his skills had been impaired. Shortly before the impact the offender had been using his mobile phone, although I am not able to find that he was distracted by the use of it as at the time of the impact. 2. The offender was driving at the time of the impact on the wrong side of the road on a clear, fine day. I do not consider the facts here established that the offender had "abandoned responsibility", as that term is used in cases like R v Whyte (2002) 55 NSWLR 252, or that his moral culpability was high, nor do I consider, however, that his moral culpability, in all the circumstances here, was low. I assess the objective criminality involved in the offence as below any notional midrange offence, noting that it is not necessary that it be compared to a notional midrange offence given there is no standard non-parole period. I do not, however, consider that, overall, the objective seriousness can be described as low. 3. The victim impact statements of Alexander Henry's parents and his twin sister are heart-rending. Mr Henry Senior bravely read them from the witness box. Their grief is extreme and continuing and their lives have been shattered by the death of their son and twin brother. They have my sincere condolences. No sentence I can impose is likely to alleviate their grief in any way. Offender's Subjective Case 1. I turn then to the offender's subjective case. The offender's is 42 years of age. He has one prior offence on his record and that is an offence in the ACT of driving with alcohol in his breath or blood in 2012 for which he was convicted, fined and disqualified from driving for six months. His lack of a significant criminal record does entitle him to some leniency here, but it is significant, in my opinion, to note that his only prior offence is one of drink driving, given he had been drinking prior to driving on the day of this offence. The Crown has only provided me with his New South Wales licence history. It suggests that he obtained in this State an unrestricted licence in 2015. He has only one infringement on that licence history recorded in 2014 of not obeying a traffic light. 2. There is a sentence assessment report and a number of letters from the offender, his wife and children and friends who know him well. In terms of his family background, the offender is married and resides with his wife and children on a farm. The letters before me from his wife, his two children and people who know him well describe him as a hardworking, committed family man. His wife and children are very dependent upon him, both financially and, of course, emotionally in many ways, with his son, Jesse, having a real need for his father's support. His wife's letter eloquently sets out the impact the offence has had on the offender and his family and the difficulties that she and his children will face upon his incarceration. 3. In terms of his education and employment history, he is a qualified tradesman and in the past has run a commercial carpentry business. He is currently employed full-time with a building company owned by his family, according to the sentencing assessment report, and this was confirmed in other material before me. He is also involved in work on the farm that he and his family live on. 4. In terms of his attitude to the offence, he told the author of the sentencing assessment report that he had been working long hours prior to the offence and that he thought the collision may have been caused by tiredness although, as I say, he has no memory of the lead up to the collision. He also told the author of the report that, despite having no recollection of the collision, he takes full responsibility for it. Having read his letter to the Court and observed him during the reading of the victim impact statements, I have no doubt that he accepts his responsibility for the collision that day and the tragedy that has occurred. 5. In the sentencing assessment report the offender was assessed as having a low risk of reoffending. In terms of his remorse, the sentence assessment report records that the offender was distressed during the preparation of that report and displayed significant insight into the impact of his offending. He indicated he understood the grief that the victim's family will continue to suffer. That comes through in his letter that has been tendered on his behalf and in the observations I made of him to which I referred earlier. Given his limited record and remorse I am satisfied that the offender has good prospects of rehabilitation and is unlikely to reoffend. 6. I have had some regard to the limited issues raised during the conduct of the trial in accordance with s 22A of the Crimes (Sentencing Procedure) Act. I have had regard to the objectives of sentencing referred to in s 3A of the Crimes (Sentencing Procedure) Act which include the need to impose adequate punishment, general and specific deterrence, protection of the community, denouncing the offender's conduct, recognising the harm done to the victim and the community and rehabilitation of the offender. 7. General deterrence is always a significant factor when sentencing for this offence which involves the needless, tragic loss of a human life. This is because of the prevalence of driving as an activity in our community and the terrible consequences, as demonstrated here, that can flow from a failure by a driver in the management of a motor vehicle. As a general proposition, in my view the consumption of alcohol should be seen as significantly increasing the risk to other users of the road even, in my view, where it cannot be found beyond reasonable doubt that an offender was above the legal limit. The road toll in this State remains at far too high a level and the sentences imposed for this type of offence must constitute a real deterrent. 8. I mentioned the guideline judgment being R v Whyte earlier and I have had some regard to it, noting my earlier finding as to the level of moral culpability and noting that a guideline judgment is not prescriptive. Here the offender is not a young offender, although he has a very limited record. As I say, it consists of an offence of drink driving, and alcohol was consumed here prior to driving. He had been driving some 20 kilometres prior to the impact with the deceased's vehicle although, in saying that, I am not suggesting that the dangerous driving occurred over all of that time. 9. I have had regard to the injuries the offender suffered as a consequence of the collision in imposing sentence. I have also had regard to the impact that incarceration of the offender will have upon his family. 10. The maximum penalty has been taken into account as the legislative guidepost as explained by the High Court in Muldrock v The Queen (2011) 244 CLR 120. I am satisfied, having considered s 5 of the Crimes (Sentencing Procedure) Act that the only appropriate sentence is one of some type of imprisonment. 11. A submission was advanced that this was a case where a sentence of less than full-time custody can properly be imposed. To consider that a sentence of something other full-time custody should be imposed I must find that a sentence of two years or less is the appropriate sentence. I am not of the view that, given the facts as I have found them to be, a sentence of two years or less is an appropriate sentence. 12. I am satisfied on the evidence, as I say, the offender has good prospects of rehabilitation and I note this will be his first time in custody. While it may be seen as a generous finding, when I consider all of the aspects of the offender's subjective case, I consider it is appropriate to make a finding of special circumstances when setting the non-parole period. Mr Rummukainen, please stand. 13. Mr Rummukainen, you are sentenced to a term of imprisonment consisting of a non-parole period of 18 months, with the balance of term of 18 months. That is a total sentence of three years' imprisonment. It commences today, 17 May 2019, and will expire on 16 May 2022. The non‑parole period expires on 16 November 2020. The earliest date you may be released to parole is the date of the expiry of the non-parole period, which is 16 November 2020. You should be released to parole that day pursuant to a statutory parole order. Orders 1. Sentenced to a term of imprisonment of 3 years commencing 17 May 2019 and expiring 16 May 2022 with a non-parole period of 18 months expiring 16 November 2020. 2. Driver's Licence disqualified for a period of two years. ********** 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: 02 September 2019