Citation: R v Read (No 2) [2017] NSWDC 323
Court: District Court of New South Wales
Date: 6 October 2017
Judge: Berman SC DCJ
Background
The offender was driving a prime mover towing an unladen low loader southbound on the Pacific Highway in August 2013. Ahead of him was a Roads and Maritime Services mowing operation, protected by two highly visible warning vehicles equipped with flashing lights, coloured signage, and lane-merge instructions. The offender failed to notice either vehicle in time to respond appropriately.
By the time the offender registered the second warning vehicle, he was forced into an emergency swerve onto the verge. His prime mover then collided with a tractor being operated by a Roads and Maritime Services worker, Mr Gary Hughes, who was sitting directly in his path. The tractor was destroyed and Mr Hughes suffered severe injuries, including multiple rib fractures, spinal fractures, lung and cardiac bruising, and ongoing neurological effects.
The offender was tried on one charge of dangerous driving occasioning grievous bodily harm. The jury convicted him, with the only contested issue at trial being whether his driving had been dangerous within the meaning of the relevant offence.
Legal Issues
- Whether the offender's inattention constituted dangerous driving, as distinct from momentary inattention, for the purpose of sentencing
- What weight should be given to the inadequacy of the Roads and Maritime Services traffic control plan as a mitigating factor
- Whether the objective gravity of the offending required a term of full-time imprisonment, or whether an intensive corrections order was appropriate
- How to balance powerful subjective features in favour of the offender against the seriousness of the offence
Decision
Berman SC DCJ held that the offender had not been looking where he was going for approximately 21 seconds, during which he passed one highly visible warning vehicle without reacting at all. His Honour rejected any characterisation of this as "momentary inattention," distinguishing the conduct from the lower end of the dangerous driving spectrum described in guideline and appellate authority. The offender's operation of a heavy vehicle compounded the risk his inattention posed to others.
His Honour accepted that the RMS traffic control plan was inadequate, as both expert witnesses at trial had agreed. However, he was clear that, while the collision might not have occurred had better controls been in place, it equally would not have occurred had the offender simply been paying attention to the road ahead. The RMS's shortcomings did not substantially reduce the offender's culpability.
On subjective features, the offender had no prior criminal history, had shown genuine remorse, had strong employment and family ties, and would suffer significant consequences from a custodial sentence including loss of income and hardship to his elderly mother and young daughter. His Honour acknowledged these factors but concluded they could not displace the need for a sentence that properly reflected the objective gravity of 21 seconds of inattention at the wheel of a heavy vehicle causing severe injury.
His Honour declined to impose an intensive corrections order. Two considerations drove that conclusion: the binding guideline judgment in R v Whyte and the need to give strong effect to the principle of general deterrence, particularly for professional drivers who spend extended hours behind the wheel.
Orders Made
- Non-parole period of nine months imprisonment, commencing 6 October 2017, with release to parole on 5 July 2018
- Head sentence of 18 months imprisonment
- Disqualification from driving for two and a half years from the date of sentence
Key Takeaways
- A period of inattention lasting approximately 21 seconds while driving a heavy vehicle past two highly visible warning structures falls well outside the concept of "momentary inattention" as discussed in R v Whyte and Kerr v The Queen.
- The District Court confirmed that inadequate traffic management by a third party does not substantially diminish an offender's culpability where the collision would not have occurred but for the offender's own failure to pay attention.
- Objective gravity remains the primary sentencing anchor, even where subjective features are considerable. Strong personal mitigation does not automatically make a non-custodial order appropriate.
- General deterrence carries particular weight in dangerous driving cases involving professional or heavy vehicle drivers, given the extended periods they spend at the wheel and the heightened risk they pose when distracted.
- Sentencing courts are not required to identify the specific cause of distraction. The District Court found it unnecessary to determine whether the offender was distracted by motorcycles or other stimuli; the sustained nature of the inattention was sufficient to establish the relevant dangerousness.
Legislation and Cases Referenced
Cases:
- Jurisic v R (1998) 45 NSWLR 209
- R v Whyte [2002] NSWCCA 343; (2002) 55 NSWLR 252 (guideline judgment on dangerous driving)
- Kerr v The Queen [2016] NSWCCA 218
Legislation: No specific legislation was cited in the text provided.