Local Court New South Wales

• Medium Neutral Citation: Director of Public Prosecutions v Robert Alan PEARCE [2011] NSWLC 32
• Hearing dates: 25/11/2011
• Decision date: 16 December 2011
• Jurisdiction: Criminal
• Before: Henson DCJ, Chief Magistrate

Decision

See paragraphs [42]-[44]

• Catchwords: CRIMINAL LAW - negligent driving occasioning death - collision occurred upon offender, a truck driver, falling asleep at wheel - subsequent diagnosis of severe obstructive sleep apnoea; SENTENCING - need for general deterrence and denunciation - court to act with caution in showing leniency despite otherwise good character of offender - sentence of imprisonment the only appropriate option - offender an interstate resident - home detention order or intensive correction order not available - suspended sentence imposed
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Criminal Procedure Act 1986; Road Transport (Safety and Traffic Management) Act 1999
• Cases Cited: Bonsu v R [2009] NSWCCA 316; DPP v Cooke [2007] NSWCA 2; Police v Curkovic (unreported, Henson LCM, 16/1/08); R v AB [2011] NSWCCA 229; R v Borkowski (2009) 195 A Crim R 1; R v Jurisic (1998) 45 LSWLR 209; R v Thomson; R v Houlton (2000) 49 NSWLR 383; R v Way (2004) 60 NSWLR 168; R v Whyte (2002) 55 NSWLR 252; R v Zamagias [2002] NSWCCA 17; Re Application by Attorney General (No 3 of 2002) (2004) 61 NSWLR 305 (Guideline Judgment for High Range PCA offences); Siganto v R (1998) 194 CLR 656
• Category: Principal judgment
• Parties: Director of Public Prosecutions; Robert Alan Pearce (the offender)
• Representation: Ms Phelps for the offender; Mr Stanhope for the DPP
• File Number(s): 2010/90310

JUDGMENT

1 The offender appears before the Court to be sentenced in relation to a charge of negligent driving occasioning death. The charge is brought pursuant to section 42(1)(a) of the Road Transport (Safety and Traffic Management) Act 1999. The maximum penalty a court may impose for this offence is a sentence of imprisonment of 18 months and/or a fine of $3,300. Additionally, upon a conviction being entered an automatic period of three years disqualification of licence flows. A Court may exercise its discretion upon proper and reasonable grounds to reduce the automatic period. It may not reduce it to a period of less than the statutory minimum of 12 months.

2 The offender is also to be sentenced in relation to two regulatory offences of recording false or misleading entries into a work record. Each of these offences is charged under regulation 84 of the Road Transport (General) Regulation 2005. The maximum penalty for each offence is a fine of $1,650.

The Facts

3 The agreed facts establish that at about 4.24am on the morning of 11 February 2010 the offender was driving a B Double semi trailer laden with drums of ink north on the Pacific Highway. At a point north of the small township of Ulmarra the offender fell asleep at the wheel. As a consequence his vehicle failed to negotiate a left hand bend, crossed to the incorrect side of the road and, despite the best efforts of Nathan Zanuso who was travelling in the opposite direction to avoid a collision, the offender's vehicle struck the front of Mr Zanuso's vehicle, causing extensive injuries to Mr Zanuso. Mr Zanuso was conveyed to hospital; however, despite the efforts of medical emergency staff Mr Zanuso passed away late on the evening of 19 February 2010.

4 There is no issue the offender is responsible for the tragic consequences of the collision. As the agreed statement of facts states, "The reason the offender's vehicle failed to follow the bend is because he had fallen asleep and was no longer in control of the vehicle."

5 Subsequent to the accident the offender sought medical assistance on the basis that he believed (correctly) that he may have fallen asleep before the accident. He raised this possibility with a Dr Farag. This is the same doctor he had seen in October 2009 as a condition of his employment and from whom he obtained a certificate indicating he was fit to drive a truck and heavy vehicles. There is no suggestion Dr Farag was made aware of the offender's issues with sleeping at this time. So much appears clear from the response to the second consultation after the accident when Dr Farag sent the offender off for examination by a respiratory physician, Dr Solin. It was on 26 February 2010 that the offender was diagnosed as suffering from "severe obstructive sleep apnoea". The diagnosis was cross-checked by a medical practitioner appointed by the Director of Public Prosecutions. The diagnosis was confirmed.

Basis of Negligence

6 It is not in issue that the offender was aware of the fact that the quality of his sleeping activity was not satisfactory, leaving him tired and unrefreshed in a general way. It is a singular misfortune that he did not act on these early warning indicia until after tragedy occurred. This is particularly so given the training given to him in September 2008 by his employer.

7 The training programme was in "Basic Fatigue Management", a course designed and aimed at assisting those engaged in the transport industry to understand the danger to the community and to drivers from fatigue and what strategies might be engaged to respond to fatigue and thereby reduce risk. An outline of the topics covered in the course is set out on page 4 of the facts. They include the potentiality for sleep apnoea in overweight persons or smokers engaged in long distance driving and of the need to ensure the statutory requirements for a 15 minute rest period in a six and one quarter hour period of driving or 2 x 15 minute periods of continuous rest time over a nine hour driving period. On the agreed facts the offender was less than diligent in his attention to this minimum standard of rest, often undertaking peripheral work activity during periods intended for complete rest with a view to reinvigoration based on the industry knowledge of the consequences of uninterrupted long hours of driving.

8 Adding to the burden of tiredness, the offender had been driving in the course of his occupation for a total of almost 36 hours out of an available 72 hours in the 3 days leading up to the accident. On the afternoon of the accident he had spent almost an additional 9 hours engaged in driving heavy vehicles. Common sense informs that this proportion of driving to available time would be expected to generate a significant level of tiredness and impact on the capacity for the appropriate level of concentration needed to ensure the safe management of an extremely large vehicle.

The Plea

9 The offender was originally charged with dangerous driving occasioning death. He was committed to stand trial before the District Court on this charge. The charge of negligent driving occasioning death was preferred in the alternative. This charge together with the regulatory offences was taken up to the District Court pursuant to section 166 of the Criminal Procedure Act 1986.

10 It appears clear from the agreed statement of facts that subsequent to committal for trial and following an independent assessment of the offender's medical condition of sleep apnoea the Director of Public Prosecutions took the view it was no longer appropriate to proceed on the more serious charge. This charge was withdrawn before the District Court. By order of his Honour Judge Freeman on 1 September 2011, the summary charges were then returned to this jurisdiction to be dealt with to finality.

11 The offender entered a plea of guilty to the returned charges on 19 September 2011. This was the date fixed by the order of the District Court for first mention upon return to the Local Court. It is well settled law that where appropriate a plea of guilty is to be taken into account in mitigation of penalty. This is because there is a utilitarian value to the administration of justice in such an approach by an offender. As the High Court said in Siganto v R (1998) 194 CLR 656 at 663-664 ([22]):

.... a plea of guilty is ordinarily a matter to be taken into account in mitigation: first because it is evidence of some remorse on the part of the offender and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of mitigation may vary depending on the circumstances of the case.

12 Section 22 of the Crimes (Sentencing Procedure) Act 1999 also requires a court to take into account a guilty plea.

13 Although the offender entered a plea of guilty to the summary charges on the first return date on remission from the District Court, the plea is not to be regarded as one entered at the first available opportunity such that it attracts a discount at the top of the range identified in the Guideline Judgment of R v Thomson; R v Houlton (2000) 49 NSWLR 383. The principles of general application identified at points 8 and 9 in R v Borkowski (2009) 195 A Crim R 1 at [32] make this clear.

14 As Bathurst CJ said in R v AB [2011] NSWCCA 229 at [3], courts should "generally continue to follow the approach in Borkowski ... the principles have to be applied by reference to the particular case".

15 It is a trite observation to make that it was open to the offender from the date of his first appearance before the Local Court and prior to committal for trial to the District Court on the more serious charge to indicate a plea of guilty to the lesser charges. Section 22(1)(b) appears to contemplate this approach. Taking these considerations into account, I identify a discount of 17.5% for the utilitarian value of his plea.

Subjective Factors

16 The offender is 52 years of age. He was 51 years old at the time of the accident. The detailed pre sentence report prepared by Corrections Victoria establishes he is married with 4 children whose ages range from 29 to 19. He is in a supportive family relationship. The offender has no criminal antecedents. He has been in his current employment as a truck driver for approximately 10 years.

17 It is clear from the offender's lack of antecedents and the content of the pre sentence report that he is a person of good character. However, this type of offence, as remarked in the decision of the Court of Criminal Appeal in R v Jurisic (1998) 45 NSWLR 209, is typically committed by persons of otherwise good character with no or limited convictions. I am required to give weight to the offender's prior good character and I do so. It is important both on its own and in the context of considering the prospects of rehabilitation and the likelihood of re-offending. Coupled with the steps the offender took after the accident to investigate his sleeping activities I accept he will learn from this tragic experience and is unlikely to re-offend.

Victim Impact Statement

18 In these proceedings the DPP tendered two victim impact statements from the parents of the deceased, Nathan Zanuso. Each Victim Impact Statement is eloquent in expressing the depth of the love of two parents for their son and heart wrenching in attempting to describe the deep sense of loss they feel in his passing.

19 There is no doubt the effects of this tragedy on both of Mr Zanuso's parents, immediate and extended family will be and likely will remain catastrophic. So much is quickly apparent from reading both statements. As I have observed in a previous case (Police v Curkovic, unrep., 16/1/08), in modern society we are conditioned to believe that the natural order of life means that children do not pass from this earth before their parents. When events intervene to disturb that equilibrium the ability of those directly and indirectly affected to cope with the unanticipated loss is correspondingly affected.

20 The law has no capacity to restore the balance in the lives of Mr and Mrs Zanuso. No words or outcome of this Court or elsewhere can ever replace the hopes and aspirations of a parent for their child. All I can say from my own experience and as a member of society is that I understand the pain of this tragic loss. I extend my sincerest sympathies to Mr Zanuso's parents.

The sentence

21 Negligence represents a failure on the part of an individual to exercise the degree of care the law requires for the protection of others.

22 Were it not for the post accident diagnosis of a sleep disorder which more likely than not contributed to the cause of the accident, the negligence associated with the commission of the offence would place it at the upper end of the range for this category of offending. A reasonable member of the community would readily comprehend that long hours of driving over the preceding three days was likely to have a cumulative effect in terms of tiredness. Against that background, failure to properly take rest periods compounds the potential consequences. I would place the offender's negligence in the middle range of objective seriousness. In doing so I believe it is important to address one particular issue.

23 The offender was seised of knowledge by reason of his participation in industry training programmes that this type of activity and physical profile both lent themselves to the possible existence of sleep apnoea and its potential consequences. That he did not seek medical diagnosis and treatment until after this accident is a tragedy in itself. Hindsight, however, cannot be regarded as exacerbating conduct.

24 The offender is to be judged on how he was at the time and in what circumstances the offence was committed. He cannot be judged on what he might or ought to have done at a different time because that circumstance is separated from the act of driving on the night of the offence. It is arguably the case that because the offender had lived with this condition for a lengthy and indeterminate period of time, he was oblivious to the fact that it was a defined medical condition amenable to diagnosis and treatment. It is reasonable to conclude based on past behaviour that had it not been for this tragedy the catalyst for identifying and treating his sleep apnoea may not have been activated.

25 In the course of her submissions on sentence, Ms Phelps for the offender tendered statistics from the Judicial Commission identifying patterns of sentencing in relation to offences of negligent driving causing death. Mr Stanhope representing the Director of Public Prosecutions tendered the decision of Bonsu v R [2009] NSWCCA 316 to the Court. Sentencing statistics are ordinarily of assistance to a Court because they identify the pattern of approach by Courts in dealing with matters falling under a common legislative provision. They do not identify comparable cases because the facts of each may be different and the circumstances of offenders may vary. Nonetheless in ordinary circumstances they represent a guide that assists a Court in avoiding the imposition of sentences that are too severe, or are mercifully weak.

26 The decision in Bonsu alters the reliability placed on sentencing statistics for this offence. In Bonsu, Howie J expressed the view at [19] that:

...little regard or insufficient regard is being paid in the Local Court or the District Court on appeal to the fact that the offender being sentenced has caused the loss of a life

and at [24] that:

... the range of penalties being imposed, at least in the Local Court, is inadequate....

27 It is appropriate to consider these observations against a background of other similar remarks made by the Court of Criminal Appeal in Jurisic and R v Whyte (2002) 55 NSWLR 252 to the effect that general deterrence is paramount and courts must tread cautiously in showing lenience for good character in such cases. The need for proper consideration of general deterrence is also reflected in legislative changes to increase the penalty for this offence.

28 The penalty provisions were amended in 1998 to increase the term of imprisonment and maximum amount of court fines. The maximum term of imprisonment has increased in recent years from 6 months to 12 months to 18 months. The consequences of increased penalties was considered in R v Way (2004) 60 NSWLR 168 at [52] where the court said, inter alia:

Traditionally any intention on the part of the legislature that the offence should attract a heavier sentence has been manifested by an increase in the statutory maximum. The courts are expected to recognize and reflect that intention when sentencing offenders for offences after such amendments are made.

29 An effect of the foregoing is to establish an approach in this sentence that is consistent with an emphasis on general deterrence. That is the approach commended by Parliament at the second reading speech when the penalty for this offence was introduced in 1998. It is the approach generally adopted in relation to driving offences where death or serious injury occurs.

30 Protection of the community is a fundamental obligation of courts exercising criminal jurisdiction. General deterrence is an important objective in pursuit of that objective. The issue the Court has to decide is whether, in light of the foregoing, the conduct of the offender for this offence warrants the imposition of a term of imprisonment.

31 Section 5 of the Crimes (Sentencing Procedure) Act 1999 further constrains the capacity for a court to impose a term of imprisonment. The relevant provision is expressed in the following terms:

5(1) A court must not sentence an offender to imprisonment unless it is satisfied having considered all the possible alternatives, that no other penalty other than imprisonment is appropriate.

32 Taking all of the relevant considerations into account, I am persuaded to the view that the sentence to be imposed in this matter must be one that emphasises general deterrence.

33 General deterrence is an important objective in the pursuit of that ultimate outcome but not an objective to be emphasised as highly in relation to this category of offence as it is in relation to more serious driving offences. This is because the objective seriousness of the two categories of offences is significantly different. So too is the nature of the conduct required to be proven.

34 Having found that the objective seriousness of this offence places it towards the middle range for this category of offence, I come to the view despite the submissions of counsel to the contrary that the appropriate sentence is one of imprisonment. Objectively the appropriate term is 12 months. After applying the 17.5% discount the identified term becomes one of 9 months and 27 days. Having determined that the offence warrants a period of full time custody, I turn my mind to the manner in which it is to be served.

35 The ultimate objective of any sentencing exercise, beyond the immediacy of punishment, is rehabilitation of the offender. As a society we recognise the need to deal with people in a manner that contains an element of humanity, an expectation of reform and provides the environment in which the prospects of rehabilitation may be enhanced rather than crushed. Society has no interest in blindly imposed sentences of imprisonment that give no thought to the future.

36 Against that background and for the reasons to which I have adverted, I am of the view that although denunciation of the offender's crime together with the objective seriousness of the offending merit the imposition of a term of imprisonment, the particular circumstances surrounding this offence merit careful consideration of the issue of compounded punishment.

37 It is my view that whilst imprisonment is warranted as a manifestation of the need for denunciation and general deterrence, the environment in which such sentence would be served is affected by the offender's personal circumstances. The offender is a resident of the State of Victoria. He lives there with his family. In other circumstances, where the offence for which he stands to be sentenced is objectively judged by Parliament by reference to the maximum available sentence to be more serious, this circumstance may be of little consideration.

38 However, in relation to an offence of this nature, the available sentencing options of Home Detention and Intensive Correction Orders are unavailable. Had the offender been a resident of New South Wales I would have been inclined to consider the appropriate prison sentence be served by way of an Intensive Correction Order. Such a penalty of imprisonment would allow the offender to remain in effect a prisoner within his own home whilst undergoing appropriate Traffic Offender and other rehabilitation programmes and performing a level of compulsory work service to the community. Neither sentence is possible. The offender cannot receive a punishment greater than that otherwise contemplated by a Court where through no fault on his part, he is not able to serve a sentence in that particular way.

39 Consequently, I am persuaded to the view the competing interests of justice are to be best met by suspending the execution of the sentence. This is a sentence urged upon the Court by defence counsel and, somewhat surprisingly, by the solicitor for the Director for Public Prosecutions. Absent either the concession by the DPP or the fact of the offender's interstate residency or both, I would not have otherwise arrived at this sentence.

40 In coming to this conclusion I acknowledge the observations of the Court of Criminal Appeal in R v Zamagias [2002] NSWCCA 17 at [32] where the court said:

A sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent both to the general public and the particular offender. Of course it must also be recognized that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment... It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.

41 It is important to note that unlike offenders for non-driving related offences, the offender will suffer an additional "penalty" in the form of licence disqualification. The national approach to driver disqualification agreed between States and Territories means any disqualification imposed in this State will be reflected in the withdrawal of licence privileges in other states and territories. For this offender, for the last decade driving has been his livelihood. He and his family depend on the income derived from this pursuit, one that will be now taken away from him for a period of time. This is not to be overlooked when considering the totality of consequences visited upon the offender for his conduct. Nor are the consequences of a breach of a bond under section 12. The Court of Appeal in DPP v Cooke [2007] NSWCA 2 makes it abundantly clear that a breach of such a bond will invariably result in the loss of the offender's conditional liberty.

Orders

42 The offender is convicted and sentenced to imprisonment for a period of 9 months and 27 days from today. Such sentence is suspended pursuant to the provisions of section 12 of the Crimes (Sentencing Procedure) Act 1999 upon the offender entering a bond to be of good behaviour for a period of 9 months and 27 days to appear before this Court if called upon during that time. He is to be of good behaviour during the currency of the bond. The bond is further conditioned that the offender continue to seek and receive treatment for his identified condition of severe obstructive sleep apnoea during the currency of the bond and to obey all reasonable directions of his supervising medical practitioner.

43 As a consequence of conviction, the Court is required to consider the appropriate period of disqualification from holding a licence to drive in New South Wales (and for all practical purposes in all other States and Territories). The automatic period of disqualification is 3 years. In light of the steps taken thus far to remedy his previously deleterious condition regarding his health and taking into account observations made by the Court of Criminal Appeal in the Guideline Judgment for High Range PCA offences (Re Application by Attorney General (No 3 of 2002) (2004) 61 NSWLR 305) regarding the approach to be taken by courts in determining whether to depart from automatic periods of disqualification, I order the offender be disqualified from holding or obtaining a licence to drive in New South Wales for a period of two years from today.

44 Turning to the two regulatory offences, the discount for a plea of guilty also applies to these offences. They represent misconduct of an outwardly minor nature. Subjectively, however, they represent a mindset of disobedience on the part of the offender which, had it not been present, may have reduced the potentiality for the more serious offence to have been committed. For each of these offences the offender is convicted. After applying a discount on sentence for the utilitarian value of the plea the offender is fined the sum of $825 on each charge. He is also ordered to pay court costs in relation to these two offences in the sum of $81 for each of the two charges. By law I can only grant the offender 28 days to pay. That time is allowed. Any longer period is to be such period as a Registrar may allow.

Judge Graeme Henson

Chief Magistrate

16 December 2011

Decision last updated: 19 December 2011