Moodie v R

1. [1]

   BELL P: On 17 October 2019, Sean Ritchie Moodie (the Applicant) was sentenced to imprisonment for a term of 4 years and 9 months with a non-parole period of 3 years on a charge of dangerous driving occasioning death under s 52A(1)(c) of the Crimes Act 1900 (NSW) after having pleaded guilty to that offence on 11 March 2019. The offence occurred at approximately 3pm on 16 September 2016.

2. [2]

   Section 52A(1) of the Crimes Act provides:

3. [3]

   The Applicant was also charged with a further offence contained on a s 166 Certificate, pursuant to the Criminal Procedure Act 1986 (NSW), being driving with an illicit substance in his blood under s 111(1)(a) of the Road Transport Act 2013 (NSW). A conviction was recorded in relation to that matter but, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW), no further penalty was imposed. He was also disqualified by the sentencing judge from holding a licence for a period of 5 years.

4. [4]

   The Applicant now seeks leave to appeal from that sentence.

5. [5]

   The circumstances giving rise to the offence and the tragic death on 16 September 2016 at Deniliquin of Mr Frederick Hanson were set out in a Statement of Agreed Facts which was before the sentencing judge (the Agreed Facts).

6. [6]

   As the first ground of appeal complains that the sentencing judge departed, without notice to the Applicant, from a central aspect of those Agreed Facts in reaching his decision as to sentence, it is necessary to set out the Agreed Facts in full for the purposes of consideration of that ground. They also form an essential background to a consideration of the remaining grounds of appeal.

The Agreed Facts

1. [7]

   The Agreed Facts were as follows:

2. [8]

   The first of the passages highlighted above reflected the Applicant’s claim that he was momentarily distracted immediately prior to the collision as a result of looking in his rear vision mirrors at another vehicle approaching him from behind.

3. [9]

   The second of the passages highlighted above appears to amount to an acceptance by the Crown that the Applicant was momentarily distracted, immediately prior to the collision as a result of looking in his rear vision mirror at another vehicle approaching him from behind, albeit that that momentary distraction was “intensified” by the blood level of methylamphetamine, and the presence of amphetamine, which impaired his driving. This passage in many respects lies at the heart of the current application for leave. It is somewhat problematic and the Crown accepted in this Court that “it is difficult to understand what that [the phrase “intensifying his momentary distraction”] could precisely mean”.

Other evidence before the sentencing judge in addition to the Statement of Agreed Facts

1. [10]

   The sentencing judge had before him and took into consideration three victim impact statements of close relatives of the deceased, a Sentencing Assessment Report dated 24 April 2019, a report and an addendum report of Dr Judith Perl, a senior pharmacologist with the Traffic Highway Patrol Command Impaired Driving Research Unit, various photos and a sketch plan of the Cobb Highway, Deniliquin and an aerial map of the collision site.

2. [11]

   His Honour also had before him a Psychiatric Report of Dr Lester A Walton and a report of Dr Angela Sungaila of the Victorian Institute of Forensic Medicine which were filed on behalf of the Applicant.

Sentencing judgment

1. [12]

   In his sentencing judgment, the Agreed Facts were reproduced.

2. [13]

   The sentencing judge then referred to the series of photographs of the scene and sketch plan of the Cobb Highway. His Honour noted that “[t]he photos of the collision scene include photographs of the victim’s tractor. Although in appearance it is somewhat rusty, it is of a relatively bright orange colour”. He then continued:

3. [14]

   The sentencing judge returned to the view he expressed in the last sentence of this passage on two further occasions in his sentencing judgment. After referring to that part of the Agreed Facts referring to the intensification of the Applicant’s “momentary distraction” (see the passage highlighted at [7] above), his Honour said:

4. [15]

   The sentencing judge returned to this observation towards the end of his judgment, stating that:

5. [16]

   As will be seen, these three passages are heavily relied upon by the Applicant to support his first ground of appeal.

6. [17]

   The sentencing judge held that, whilst the offence did “not fall at the highest range of objective seriousness”, it was “certainly above the midrange”.

7. [18]

   As to subjective matters, the sentencing judge noted that the Applicant’s criminal history was limited. He noted one matter of behaving in an offensive manner which was dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act and which the sentencing judge properly described as irrelevant to the current matter. More significantly, the sentencing judge noted that the Applicant had received an Intensive Correction Order of 9 months in 2014 for the supply in 2013 of a prohibited drug, although his Honour noted that there was no evidence before the Court as to what that drug was.

8. [19]

   The sentencing judge accepted in his sentencing judgment that the Applicant “is indeed genuinely remorseful and contrite in relation to his offending”. The sentencing judge also accepted that the Applicant was at low risk of re-offending and that there was a good prospect of rehabilitation.

9. [20]

   The sentence included a discount of 5% for an early guilty plea. That relatively modest level of discount was not challenged on appeal although it is open to this Court, in the event of re-sentencing, to revisit that level of discount.

Grounds of appeal

1. [21]

   The Applicant relies upon the following six grounds of appeal:

Ground one

1. [22]

   It may readily be inferred that the inclusion in the Agreed Facts of a reference to “momentary distraction” (albeit subject to the important qualification that the “momentary distraction” was “intensified” by the blood level of methylamphetamine, and the presence of amphetamine) was neither casual nor accidental.

2. [23]

   The concept of “momentary” distraction or inattention or misjudgement, though not in terms a statutory expression, has assumed forensic significance in the case law associated with dangerous driving and s 52A of the Crimes Act as a result of this Court’s “Guideline” judgment in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (Whyte). The expression “momentary inattention” had also assumed forensic significance in an earlier guideline judgment of this Court concerned with s 52A of the Crimes Act: see R v Jurisic (1998) 45 NSWLR 209 at 231; (1998) 101 A Crim R 259 (Jurisic). Jurisic was reconsidered in Whyte.

3. [24]

   Guideline judgments have statutory force and oblige sentencing judges to take them into account: see Pt 3, Div 4 of the Crimes (Sentencing Procedure) Act and Whyte at [32]-[67] especially at [65].

4. [25]

   In Whyte, Spigelman CJ referred at [204] to a “frequently recurring case of an offence under s 52A” of the Crimes Act as having the following characteristics:

5. [26]

   The Chief Justice continued at [205]:

6. [27]

   At [206], Spigelman CJ referred to the Jurisic guideline as containing the proposition that “[a] non-custodial sentence for an offence against s52A should be exceptional and almost invariably confined to cases involving momentary inattention or mis-judgment”.

7. [28]

   In light of the High Court’s intervening judgment in Wong v R (2001) 207 CLR 584; [2001] HCA 64 (Wong), and s 5 of the Crimes (Sentencing Procedure) Act, at [214] of Whyte, the Chief Justice restated the guideline for a typical case as identified at [25] above as follows:

8. [29]

   Both in the Jurisic guideline and the restated Whyte guideline, momentary inattention or misjudgement has been equated with a low level of moral culpability and, as Spigelman CJ had observed at [205] of Whyte, the degree of moral culpability involved is a critical component of the objective circumstances of the offence. I apprehend no difference between the language of “momentary inattention or misjudgement” as used in the Whyte guideline, and “momentary distraction” as used in the Agreed Facts.

9. [30]

   Since Whyte, innumerable cases involving s 52A of the Crimes Act have drawn upon the guideline, and have placed emphasis on the momentary nature of the driver’s distraction or inattention.

10. [31]

    To return to the point made at [22] above, the inclusion in the Agreed Facts of reference to the Applicant’s “momentary distraction” was of forensic significance, and this is only reinforced when it is appreciated that the Applicant pleaded guilty to the offences on the same day that agreement as to the facts was reached. Although no evidence was led in this regard, it may well be that securing the Crown’s agreement to this fact played a role in securing the plea. Whether or not that was the case, the Applicant was entitled to proceed on the basis that he would be sentenced by reference to the Agreed Facts or, at the very least, that there would not be a departure from the Agreed Facts without clear notice being given to him.

11. [32]

    The passages in the sentencing judgment upon which the Applicant relies in support of the first ground of appeal, and his submission that the sentencing judge departed from the Agreed Facts in a material way without notice to him, have been set out at [13]-[15] above. Counsel for the Applicant submitted, in this respect, that the Applicant had been denied procedural fairness, citing R v Crowley [2004] NSWCCA 256 at [46] where Smart AJ, with whom Wood CJ at CL and Hidden J agreed, observed:

12. [33]

    The law is clear that where a sentencing judge proposes to make a factual finding or findings of an offender’s culpability which departs from that which is contained in the agreed facts (which he or she is entitled to do, not being bound by any statement of agreed facts), the judge must give the parties notice of this matter and the opportunity to address it by both evidence and submissions: DL v R (2018) 265 CLR 215; [2018] HCA 32 at [39] (DL); Purdie v R [2019] NSWCCA 22 at [51]-[52] per Price J, with whom Bathurst CJ and Hoeben CJ at CL agreed; and Nguyen v R [2015] NSWCCA 268 at [45]-[46] per Price J, with whom Hoeben CJ at CL and Button J agreed. Such notice must, moreover, be clear as to the different factual basis by reference to which the sentencing judge is proposing to proceed, and give the parties a meaningful opportunity to address the proposed different factual basis propounded.

13. [34]

    Counsel for the Applicant also submitted that:

14. [35]

    In R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], the majority (Gleeson CJ, Gaudron, Hayne and Callinan JJ) said that:

15. [36]

    The Crown made two principal submissions in response to the first ground of appeal. First, that the sentencing judge did not in fact depart from the Agreed Facts in the three passages that have been highlighted at [13] – [15] above and that all his Honour was doing in these passages was expressing a measure of scepticism at the description “momentary distraction”.

16. [37]

    That submission should be rejected. In two of the three passages, the sentencing judge described his observations as reflecting “my view”. Whatever be the precise ambit denoted by the term “momentary”, the sentencing judge took the view that the Applicant’s distraction (and therefore his culpability) was of a significantly greater duration.

17. [38]

    Further, if, contrary to this view of the matter, the sentencing judge did not in fact depart from the Agreed Facts, his “observations” and evident scepticism as to the expression “momentary distraction” disclose that his sentencing discretion was vitiated by an irrelevant consideration, namely his own musings, as to the duration of the distraction, contrary to the Agreed Facts. However, as I have noted at [37] above, the sentencing judge’s language indicates a clear departure from the Agreed Facts, and the fact that his Honour made no less than three references to this fact highlights that it played a significant role in the exercise of his sentencing discretion.

18. [39]

    In reaching this view, I have not overlooked the fact that the Agreed Facts stated that “[t]he blood level of methylamphetamine, and the presence of amphetamine, impaired his driving by intensifying his momentary distraction.” Precisely what was meant by this statement was not made clear either by any of the other Agreed Facts, the expert report of Dr Perl which was prepared on 17 February 2017 prior to the Agreed Facts being agreed, or counsel for the Crown.

19. [40]

    In submissions before the sentencing judge, counsel then appearing for the Crown submitted that “[t]he Crown never ever sought to quantify the degree of distraction”. Whilst on appeal, counsel for the Applicant took issue with this statement by reference to the Crown’s agreement to the phrase “momentary distraction” in the Agreed Facts, the Crown’s failure to seek to quantify the length of distraction appears to have led the sentencing judge to seek to do this for himself, without:

20. [41]

    These considerations only serve to illustrate how the matters which the sentencing judge took it upon himself to assess, departing in that context from the Agreed Facts, needed properly to be notified well in advance to ensure that the Applicant had a reasonable and meaningful opportunity to deal with them.

21. [42]

    The Crown’s second response to the complaint of a denial of procedural fairness was to mount an argument that the sentencing judge had put the Applicant and his then counsel on notice of the possibility of departure from the Agreed Facts. This was said to have occurred during the following exchange which took place on the morning of 17 October 2019 when the sentencing hearing was called over, the hearing proper commencing shortly thereafter with sentence being pronounced with reasons after lunch on the same day. In the passage relied upon by the Crown, the exchange between the sentencing judge and counsel for the Applicant was as follows:

22. [43]

    This passage was wholly inadequate to put the Applicant on notice that the sentencing judge was contemplating departing from the reference to “momentary distraction” in the Agreed Facts. It signified that the sentencing judge wished to have some photos and a plan of the site of the collision. It did not indicate that his Honour was proposing to embark upon an assessment or attempted quantification or approximation of the period of time during which the Applicant was distracted. The Crown’s submission in this regard was one that was informed by considerations of hindsight. Such indication as was conveyed by the sentencing judge’s requests for further information immediately prior to the sentencing hearing was oblique at best and, in my opinion, given the significance of the matter for the subsequent sentencing, wholly inadequate.

23. [44]

    In this regard, counsel for the Applicant was not asked any questions about the photos or plans during the sentencing hearing, the sentencing judge did not put the Applicant or his counsel on notice that he was going to make findings as to the length of the distraction that put it as significantly more than that which was conveyed by the expression “momentary distraction”, and counsel for the Crown also made no such submission. Indeed, as noted at [40] above, counsel for the Crown submitted that “[t]he Crown never ever sought to quantify the degree of distraction”. The sentencing judge did not at this stage raise with either the Crown or counsel for the Applicant that, notwithstanding that fact, his Honour was proposing to engage in this quantification exercise. The only matters the sentencing judge expressly raised with the Applicant’s counsel following the Crown’s observation as to the duration of the distraction were unrelated, namely the timing of the guilty plea and the question of remorse.

24. [45]

    The first ground of appeal should be upheld.

Grounds two and three

1. [46]

   It is convenient to consider grounds two and three together. The second ground of appeal is that the sentencing judge failed to take into account the guideline judgment in Whyte.

2. [47]

   The sentencing judge did not refer in terms to Whyte in his sentencing judgment, although counsel for the Applicant accepted that a failure to formally refer to the decision did not mean that the matters highlighted in such a guideline judgment were not necessarily taken into account by the sentencing judge. This concession was correct. In the same way, a formalistic reference to a guideline judgment in a sentencing decision will not necessarily mean that it has been taken into account in a meaningful and appropriate way.

3. [48]

   The question is one as to whether or not the guideline judgment was in fact taken into account, as it must be: see Whyte at [62]. That question is one of substance and not form. It will principally fall to be assessed by a comparison between the factors identified in the guideline judgment and the reasons for the sentencing decision. Also relevant, but to a lesser degree, will be whether or not the sentencing judge has been referred to the relevant guideline judgment (in the present case, Whyte) in the course of submissions during the sentencing hearing. Here, it is common ground and plain on the face of the transcript that the sentencing judge was not referred to, and did not himself make reference to, Whyte.

4. [49]

   Counsel for the Crown pointed out that the sentencing judge heard submissions and delivered his judgment on the same day whilst on circuit and, in this context, invoked Spigelman CJ’s observation in R v McNaughton (2006) 66 NSWLR 566 at 577; [2006] NSWCCA 242 at [48], and like observations of Johnson J (with whom McClellan CJ at CL and Hammerschlag J agreed) in R v Speechley [2012] NSWCCA 130; (2012) 221 A Crim R 175 at 180-181. Notwithstanding the good sense in those observations, and the commendable discharge of judicial duty constituted by an ex tempore judgment where one is capable of being delivered, the context (on circuit) and/or form (ex tempore) in which a sentencing judgment is delivered does not relieve a sentencing judge from what Spigelman CJ described in Whyte at [67] as the “statutory effect on sentencing judges of a guideline judgment – that such a judgment should be ‘taken into account’.”

5. [50]

   The third ground of appeal is that the sentencing judge was wrong to find that the objective seriousness of the offence was “above the midrange”.

6. [51]

   The Applicant’s submission was that, whilst accepting the restraint that must be accorded to the review of an assessment of objective seriousness by an appellate court consistent with decisions such as Mulato v R [2006] NSWCCA 282 at [37] and [46]; R v Fahda [2013] NSWCCA 86 at [4]; and Magro v R [2020] NSWCCA 25 at [29], the assessment of “above the midrange” was not open to the sentencing judge. It was pointed out that the sentencing judge did not identify in his judgment what matters were central to his assessment of the offence as “above the midrange”.

7. [52]

   Counsel for the Applicant submitted that the sentencing judge’s error largely arose from his failure to take into account the matters raised under Whyte. In addition to the first limb of the restated Jurisic guideline that I have referred to at [28] above, Spigelman CJ in Whyte also noted at [229] that:

8. [53]

   At [233] of Whyte, Spigelman CJ said that “[t]his guideline focuses attention on the objective circumstances of the offence.” At [216]-[217], his Honour noted the following factors that a Court must take into account as being relevant to an assessment of moral culpability:

9. [54]

   At [228] of Whyte, Spigelman CJ said:

10. [55]

    Counsel for the Applicant placed particular emphasis in her submissions on the sentencing judge’s failure to advert to many of the “aggravating” factors set out at [53] above in a context where the case was not, she submitted, far removed from the typical or “frequently recurring” case of an offence under s 52A of the Crimes Act (see [25] above). This was not a case, for example, involving excessive speed, erratic or competitive driving or showing off, of ignoring warnings, of escaping police pursuit or of failing to stop.

11. [56]

    For these reasons, in addition to the momentary nature of the Applicant’s distraction, it was submitted that the Applicant’s moral culpability could not be described as “high” in the context of the Whyte guideline judgment.

12. [57]

    It may also be observed that there is a close correlation between the assessment of objective seriousness and the first ground of appeal because of the conceptual relationship between the length of any operative distraction and the seriousness of the offence from an objective perspective, as Spigelman CJ made plain in the passage from Whyte, which has been referred to at [25] above.

13. [58]

    These submissions were all subject to the important fact, however, as counsel for the Applicant acknowledged, that there was an aggravating factor of significance in the present case, namely the presence of methylamphetamine and amphetamine in the Applicant’s blood. Further, the Applicant was bound to accept what was stated in the Agreed Facts extracted at [7] above, namely, that the presence of those illicit substances in his blood intensified the degree of impairment of his driving. The difficulty is that the Agreed Facts simply cast no light on the extent to which the degree of impairment was “intensified”. In this context, it is necessary to make reference to the expert reports of Dr Perl and Dr Sungaila that were before the sentencing judge.

14. [59]

    Dr Perl in her report of 17 February 2017 (which pre-dated the plea and agreement as to the facts) had stated that:

15. [60]

    In an addendum report of 15 May 2019, after the plea and agreement as to the facts, Dr Perl responded to a supplementary question from the Office of the Director of Public Prosecutions (NSW) as to what concentration of methylamphetamine would produce a blood level of 0.13mg/litre 17 hours after ingestion, as follows:

16. [61]

    There is an apparent and not insignificant tension between the premise on which this supplementary question was posed, namely ingestion 17 hours prior to the collision, and Dr Perl’s inference in her principal report that the methylamphetamine was used (“expected use”) within 6 hours of the collision. In her principal report, although Dr Perl opined that she “would certainly expect impairment of [the Applicant’s] driving ability to have been present”, she did not express any opinion as to the likely degree of impairment.

17. [62]

    Dr Perl’s addendum report issued on the basis of a different assumed timing of ingestion of the methylamphetamine, namely 17 hours prior to the collision, and in particular her statement that “[t]his state of rebound sedation and fatigue can result in drowsiness, fatigue, slower reactions, impaired perceptions and vigilance” (emphasis added), also left the matter in a state of some uncertainty. (The 17 hour timeframe derived from the Applicant’s recollection as supplied to Dr Walton, although this was some two and a half years after the collision.)

18. [63]

    In response to Dr Perl’s reports, Dr Sungaila gave evidence that:

19. [64]

    It is in this evidentiary context that grounds two and three must be considered.

20. [65]

    In my opinion, there was a failure on the part of the sentencing judge effectively or in substance to have regard to Whyte, and this resulted in error as to the finding that the offence was above the midrange of objective seriousness. Although the sentencing judge’s failure formally to refer to Whyte is not determinative (see [47] above), it was nevertheless not insignificant, especially when coupled with the fact that neither counsel referred to it in their submissions nor worked through the various factors identified in Whyte in oral address. Further, had the decision been taken into account by the sentencing judge, one would reasonably expect the sentencing judge to advert to the presence or absence of the factors identified in Whyte as relevant to assessing moral culpability and objective seriousness, even if his Honour did not refer to the case by name or citation. The sentencing judge not only did not refer to Whyte but he also did not refer in terms to the Applicant’s moral culpability.

21. [66]

    The sentencing judge did not do what Garling J, with whom Simpson and Price JJ agreed, said in Mina Nashed v R [2010] NSWCCA 282 at [37] (Mina Nashed), that a sentencing judge was required to do, namely:

22. [67]

    Accordingly, I would uphold ground two.

23. [68]

    I would also uphold ground three and would have done so even if I were satisfied, contrary to my acceptance of ground two, that the guideline judgment in Whyte had been taken into account by the sentencing judge.

24. [69]

    Had there been no drug use, a case of dangerous driving occasioning death where the driver was momentarily distracted would not, under Whyte, ordinarily attract a custodial sentence at all, especially in circumstances where, as in the present case, it was agreed that the speed limit was being observed, there was genuine remorse by the Applicant and a strong subjective case.

25. [70]

    That the Applicant had ingested methylamphetamine was undoubtedly an aggravating factor which it was accepted compelled the need for a custodial sentence. But the critical question is whether or not the sentencing judge was correct to characterise the offence as being above the midrange.

26. [71]

    The Applicant’s moral culpability could not, in my opinion, be fairly said to have been established to be such as to warrant characterisation of the offence as “certainly above the midrange”. This is in circumstances where the Agreed Facts shed little light at all on the degree or extent of intensification of impairment, and the expert evidence called on behalf of both the Crown and the Applicant did not greatly advance the matter and, on one view, undermined the agreed fact of impairment (by expressing the matter as not capable of establishment beyond reasonable doubt, in the case of Dr Perl’s primary report, and one of only “possibility” in the case of Dr Sungaila and Dr Perl in her addendum report).

27. [72]

    The sentencing judge’s conclusion as to the objective seriousness of the offence did not secure a foundation in the expert evidence before him, but was rather built upon the sentencing judge’s illegitimate speculation as to the length of the Applicant’s distraction which, for reasons set out under consideration of ground one, was not open to his Honour in the circumstances of the case.

28. [73]

    Grounds two and three should be upheld.

29. [74]

    In light of my conclusions in respect of grounds one, two and three, it is strictly unnecessary to deal with grounds four and five. Ground four, however, can be dealt with briefly.

Ground four

1. [75]

   The fourth ground of appeal was that the sentencing judge erred in finding “it is appropriate to take into account specific deterrence in relation to this particular offender”. That ground, although not abandoned, was not the subject of any oral submissions.

2. [76]

   In written submissions, the substance of the complaint was modified to be a complaint about the weight attributed to the factor of specific deterrence. The difficulty with this modified form of criticism is that the sentencing judge did not in fact indicate what weight he gave to the factor of specific deterrence, but only stated that it was appropriate to take specific deterrence into account. With that statement, there could be no criticism by the Applicant.

3. [77]

   I would not uphold the fourth ground of appeal.

Ground five

1. [78]

   Again, by reason of the conclusions already reached with respect to grounds one to three, it is strictly unnecessary to consider the fifth ground of appeal, which was that the sentence imposed was manifestly excessive. The arguments advanced in support of this ground have relevance, however, to the re-sentencing exercise which is dealt with at [107]-[148] below.

2. [79]

   The essence of the Applicant’s argument as to manifest excess was that, given the legislative guidepost of 10 years provided by the maximum penalty for the offence (see Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]), the sentencing judge’s starting point for the Applicant’s sentence of 5 years (before a 5% discount for an early plea) was excessive, as the Applicant’s:

3. [80]

   The Applicant sought to support his claim of manifest excess by reference to a series of similar offending by truck drivers, in contravention of s 52A(1)(c) of the Crimes Act.

4. [81]

   To the extent that comparative sentences in similar cases were deployed in aid of this ground of appeal, the important principle of consistency in sentencing warrants reference to those decisions both for the purposes of this ground of appeal and also for the purposes of any re-sentencing of the Applicant by this Court, in accordance with the decision of Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 (Kentwell).

5. [82]

   In this context, and as a preliminary matter, the Crown cited the following passage in FL v R [2020] NSWCCA 114 at [77]-[79] (FL), in which Wilson J, with whom R A Hulme and Hamill JJ agreed, said:

6. [83]

   There are aspects of this passage that, in my respectful opinion, amount to too general a statement and require a degree of qualification. In particular, the statement that the use of “similar cases” has been “regularly, and repeatedly, decried by this Court as inapposite to the task” is too strong a statement. The position is, again with respect, rather more nuanced than is suggested by the words “decried” and “inapposite”. Far from being inappropriate, the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing, and consistency of sentencing is an important element of both criminal justice and the rule of law more generally. As Sir Anthony Mason put the matter with customary clarity in Lowe v R (1984) 154 CLR 606 at 610-611; [1984] HCA 46:

7. [84]

   Spigelman CJ, with similar clarity and to similar effect, said in Jurisic at 216:

8. [85]

   Whilst it is true to say that no two cases and no two offenders are identical or the same, I do not share the opinion expressed by Wilson J that “no two crimes and no two offenders are alike”: cf FL at [79]. Indeed, decisions which do take into account comparative sentences proceed on the basis that cases do share common, or at least similar, features. So too, guideline judgments proceed by reference to a concept of a “frequently recurring case”: see, for example, Whyte at [204].

9. [86]

   In Wong at [12], Gleeson CJ observed that:

10. [87]

    Further, in Hili v R (2010) 242 CLR 520; [2010] HCA 45 at [53] (Hili), the plurality went so far as to say that “in seeking consistency, sentencing judges must have regard to what has been done in other cases” (emphasis added). Moreover, in the context of not disturbing the Court of Criminal Appeal’s decision that the sentence imposed in that case at first instance was manifestly inadequate, the plurality observed at [62] that the “chief considerations which pointed to inadequacy in these cases were the nature of the offending, and the sentences that had been imposed in cases most closely comparable with the present” (emphasis added). Indeed, in Hili, the plurality did not question the legitimacy of the use of “only one or two … closely comparable” cases (see at [64]) to found the conclusion of manifest inadequacy, stating at [67] that the:

11. [88]

    Of course it remains correct, as Wilson J pointed out in Sabbah v R (Cth) [2020] NSWCCA 89 at [134] that a “glib” recitation of sentences imposed for similar offences without more will be of little or no utility to either a sentencing judge or an appellate court. Relatedly, the use of statistics alone is generally unlikely to supply the granularity necessary for critical appraisal of the closeness of cases presented as “like” or “similar” or “comparable”.

12. [89]

    It is also correct, as Wilson J observed in FL at [78], that the analysis is not aided by an uncritical assembly of a greater number of cases involving the same offence, where little or no attention is paid to the degree of similarity between the cases relied upon and the facts of the case in which the sentencing discretion is being exercised or re-exercised by an appellate court.

13. [90]

    On the present appeal, the Applicant identified some 12 cases which it contended were sufficiently comparable to warrant the conclusion that the sentence imposed was manifestly excessive, and which it also contended would provide some guidance to this Court on any re-sentencing exercise: see Barnett; Costello v R [2017] NSWCCA 32 (Costello); Cvetjovski (Cvetkovski) v R [2019] NSWCCA 100 (Cvetjovski); Markham v R [2007] NSWCCA 295; Mina Nashed; Morabito v R [2007] NSWCCA 126; Preston v R [2011] NSWCCA 25 (Preston); R v Clampitt-Wotton [2002] NSWCCA 383; R v Craig Besant [2003] NSWCCA 388 (Craig Besant); R v Gardiner [2004] NSWCCA 365 (Gardiner); R v Gerard De Groot [2016] NSWDC 93 (Gerard De Groot); and R v Tinker [2019] NSWDC 427.

14. [91]

    The Applicant’s detailed submissions in relation to this suite of cases form an appendix to these reasons. These cases all involved truck drivers whose dangerous driving had occasioned death. Only Cvetjovski (3 years imprisonment with a non-parole period of 2 years), Gardiner (4 years imprisonment with a non-parole period of 2 years and 6 months), Craig Besant (5 years with a non-parole period of 3 years and 6 months) and Gerard De Groot (2 years and 3 months with a non-parole period of 15 months) involved truck drivers who had illicit drugs in their system at the time of the collision occasioning death.

15. [92]

    For this reason, these cases provide the closest comparators, although other cases identified involved a high degree of moral culpability and the presence of aggravating circumstances indicating high moral culpability, but attracted much lower penalties than in the instant case: see, in particular, Costello (aggressive merging with a poor driving record and doubtful prospects of rehabilitation - 3 years with a non-parole period of 1 year and 14 days) and Preston (deliberate risk-taking and absence of remorse - 3 years imprisonment with a non-parole period of 18 months).

16. [93]

    In relation to Craig Besant, counsel for the Applicant submitted that the objective seriousness of the offender Mr Besant’s conduct was significantly more serious than that exhibited by the Applicant, with the sentencing judge in Craig Besant observing that:

17. [94]

    In my opinion, notwithstanding the wide discretion afforded to a sentencing judge, the sentence imposed on the Applicant was manifestly excessive. This conclusion is in part driven by the primary judge’s illegitimate “findings” about the duration of the Applicant’s distraction. A conclusion of manifest excess is also an almost inevitable consequence of my finding in respect of ground three, namely that the sentencing judge erred in finding that the offence was “above the midrange”. Such a finding necessarily informed the ultimate sentence imposed.

18. [95]

    I am fortified in my conclusion by a consideration of the cases relied upon by counsel for the Applicant on comparable sentences, and whilst no case is of course identical, there were sufficiently strong similarities in a number of the cases relied upon to inform the analysis and conclusion.

19. [96]

    I would, accordingly, uphold ground five.

Ground six

1. [97]

   Ground six is somewhat discrete from the other grounds of appeal, as it relates to the driving disqualification. It arises because of the fact that the Applicant’s licence was suspended as a result of the offence from 17 March 2017 until the date of sentencing, 17 October 2019.

2. [98]

   The Court Order Notice recording the sentencing judge’s orders is expressed as follows:

3. [99]

   The way in which the Court Order Notice is formulated is apt to, at the very least, create confusion and, on one view, to overstate the intended duration of disqualification.

4. [100]

   The sentencing judge’s plain intent was that the period of disqualification be taken into account. So much is common ground between the Applicant and the Crown. Contrary to the Court Order Notice, this was not a matter for the Roads and Maritime Services to take into account; rather, it should have been taken into account by the sentencing judge who misapprehended the operation of s 206B(2) of the Road Transport Act.

5. [101]

   Section 205(2)(d) of the Road Transport Act required the Applicant to be automatically disqualified from holding a drivers licence for a period of three years or, pursuant to sub-section (ii), “if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification--the person is disqualified from holding a driver licence for such period as may be specified in the order.”

6. [102]

   Section 206B of the Road Transport Act provides that:

7. [103]

   The Crown accepted in written submissions that the sentencing judge intended that the Applicant be disqualified from holding a drivers licence for a period of 5 years, less the period of suspension, and that the appropriate order would have been that the Applicant be disqualified from holding a drivers licence for a period of 2 years 4 months and 20 days.

8. [104]

   The Crown also pointed to the operation of s 206A(3) of the Road Transport Act, which provides that the “specified period of disqualification of the person is extended (by the operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification.” The effect of this section (and s 206A(4) of the Road Transport Act) is that disqualification would take effect upon the Applicant’s release to parole.

9. [105]

   The sentencing judge’s specified period of disqualification mirrored the starting point for his sentence for contravention of s 52A(1) of the Crimes Act. A period of 5 years’ disqualification represented a significant departure from the mandatory 3 year period specified in s 205(2)(d) of the Road Transport Act, although it was open to the sentencing judge to extend this period, as his Honour did. His Honour’s extension of the period was undoubtedly influenced by his views as to the objective seriousness of the s 52A(1) offence which, as has been explained above, were vitiated by the denial of procedural fairness and the other errors that have been made good under grounds two and three in particular.

10. [106]

    In my opinion, an appropriate period of disqualification is 3 years. In practical terms, given the 2 year 7 month period of suspension that has already passed (see [97] above), the Applicant should be disqualified from driving for a period of 5 months upon his release to parole.

Re-sentencing

1. [107]

   It is necessary, in accordance with the decision in Kentwell, for this Court to exercise the sentencing discretion afresh and to re-sentence the Applicant.

2. [108]

   That sentencing discretion should be re-exercised having regard to the guideline judgment in Whyte, the Agreed Facts, the other evidence before the sentencing judge including, importantly, the victim impact statements of Mr Hanson’s elderly mother, his sister and his nephew, and evidence relating to the offender’s post-sentence circumstances or conduct. In this context, the Applicant relied on an Affidavit filed on his behalf by his solicitor, Ms Jasmina Ceic.

3. [109]

   In approaching the task of re-sentencing in cases involving death by dangerous driving, as has frequently been said (see, for example, R v Jarad Smith [2016] NSWCCA 75 at [18] endorsing the remarks made in R v Melissa McKeown [2013] NSWDC 22 at [5]; R v Steven Barnett [2016] NSWDC 302 at [3]-[4]), judges are asked to perform an impossible task as no human life can ever be equated with a period of imprisonment and no gaol term can return a loved one. A life should never be measured simply by the punishment meted out to an offender. The sentencing discretion must reflect an adequate punishment, recognising the harm done and denouncing the conduct of the offender and also reflect the objective seriousness of the offence, the offender’s moral culpability, his or her prospects of rehabilitation and the likelihood or unlikelihood of future offending.

4. [110]

   No specific submissions were advanced by counsel for the Applicant in relation to re-sentencing, although it is plain that counsel’s submissions with regard to grounds one, three and five were relevant to any re-exercise of the discretion by this Court. I have already made reference at [79] above to the submission by counsel for the Applicant that he:

5. [111]

   In point of fact, the Applicant was 36 at the time of the offence. His remorse was attested to by Dr Walton, as well as in a Sentencing Assessment Report (see [112] below). Dr Walton reported the Applicant’s post-collision history of anxiety, depression and intense nightmares for which he had been prescribed an anti-depressant. Dr Walton also expressed the opinion that:

6. [112]

   The Sentencing Assessment Report included the following observations:

7. [113]

   Counsel for the Applicant did not submit that a non-custodial sentence would be appropriate by reason of the presence of methylamphetamine and amphetamine in the Applicant’s blood at the time of the collision, and the concession contained in the Agreed Facts as to impairment to driving on account of the use of the methylamphetamine and amphetamine (albeit unclear as to its precise meaning). On the other hand, she emphasised the Whyte guideline factors and submitted that the fact that the distraction was agreed to be “momentary”, with the implications of that for moral culpability, pointed to a far lower sentence than that actually imposed as being appropriate.

8. [114]

   As noted at [108] above, reliance was also placed for the purposes of re-sentencing on Ms Ceic’s affidavit. That affidavit was largely based upon information and belief from the Applicant’s partner of some 6.5 years, Ms Jessica Sawyer, who resides in Wodonga with her three children, one aged 10 years from a former relationship, and two from her relationship with the Applicant who are now aged 5 and 2 years old. Ms Ceic deposes to Ms Sawyer’s instruction that the Applicant has a close and loving relationship with all three children, the eldest of whom suffers from Autism Spectrum Disorder (level 2), Asperger’s Syndrome and extreme level anxiety.

9. [115]

   Ms Ceic’s affidavit describes Ms Sawyer’s financial circumstances, including her very low level of income as a casual childcare worker (less than $30,000 per year), that she had lost her position in March 2020 although may have work available after the relaxation of COVID-19 measures; the fact that the Applicant had been the main source of financial support for the family of five prior to his incarceration, in addition to the assistance he provided around the house and with the children.

10. [116]

    The affidavit also describes the Applicant’s circumstances in custody, that he had gained one of only two positions of employment within the Correctional Centre (although this had ceased since the imposition of COVID-19 related restrictions), that he had completed courses whilst in custody and was well spoken of by guards. Because of COVID-19 related restrictions, Ms Sawyer and the children have not been able to visit the Applicant for a number of months.

11. [117]

    The affidavit also deposes to the fact that the Applicant’s most recent employer has indicated that he has a position of employment as a truck mechanic available for the Applicant on his release from custody.

12. [118]

    Counsel for the Crown submitted that no other sentence than that which was imposed should be passed, contending that:

13. [119]

    Counsel for the Crown also made reference to DL at [9] in support of the submission that the Court of Criminal Appeal's determination of the appropriate sentence is to be undertaken by reference to the material that was before the sentencing judge, the sentencing judge's unchallenged factual findings, and any relevant evidence of the offender's post-sentence conduct.

14. [120]

    A number of observations should be made with regard to that submission.

15. [121]

    First, the High Court in DL qualified its observation with the proviso “[e]xceptional cases apart”: at [9]. The Court did not elaborate on what those exceptional cases might be.

16. [122]

    Secondly, the High Court cited in support of the statement in DL, as relied upon by the Crown, its earlier decisions in Carroll v R [2009] HCA 13 at [24]; (2009) 83 ALJR 579 at 584 (Carroll), and Betts v R (2016) 258 CLR 420 at 427; [2016] HCA 25 at [14] (Betts).

17. [123]

    In Carroll at [24], the Court drew a distinction between how an offender’s conduct was properly to be characterised and where, on an objective scale of offending, the appellant's conduct stood, on the one hand, and discarding unchallenged factual findings as to why the offender had acted as he had, or attributing to him the ability to foresee that his conduct could cause not just serious injury, but severe injury or the possibility of death, on the other hand. The former matters were properly for the re-sentencing court to assess afresh.

18. [124]

    In Betts at [14], the High Court said:

19. [125]

    Where an intermediate appellate court is required to resentence an offender where the sentencing judge’s discretion has miscarried because of, inter alia, a denial of procedural fairness, “factual findings” made consequent upon that denial of procedural fairness must, in my opinion, fall within the category of “exceptional cases” to which the High Court referred in DL at [9]. Further, where those findings are based on inferences drawn from other material by the primary judge (cf Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9), such “findings” may be more amenable to review, at least in the exceptional context where there has been a denial of procedural fairness in the drawing of inferences, on the basis that the appellate court is in just as good a position as the sentencing judge to assess the matter.

20. [126]

    I make these points because, to the extent that the sentencing judge could be described as having made findings of fact in relation to the duration of the distraction in those portions of the sentencing judgment that I have highlighted and extracted at [13] – [15] above, those findings should not, and in my view cannot, be properly taken into account on a re-sentencing of the Applicant.

21. [127]

    It follows that the Applicant should be resentenced on the basis that he was momentarily distracted, albeit that that distraction was intensified by the presence of methylamphetamine and amphetamine in his blood. The effect of that admitted intensification remains unclear, however, and the evidence of both Dr Perl and Dr Sungaila does not assist in providing content or significant meaning to the concept of intensification (see at [71] above). Moreover, the Agreed Facts recorded that, whilst being interviewed by the police after the collision, the Applicant’s “eyes, speech, balance and movements all appeared normal”.

22. [128]

    In making reference to the expression and concept of “momentary distraction”, it is also necessary to note the sage observation of Simpson J (as her Honour then was) in R v Khatter [2000] NSWCCA 32 at [31]:

23. [129]

    To this observation it is necessary to add that a case of momentary distraction and the correlative moral culpability indicated thereby may be aggravated by a wide range of factors which may operate individually or in combination to elevate an offender’s moral culpability, as the guideline judgment in Whyte recognises. Olbrich requires the existence of such adverse facts to be established beyond reasonable doubt: see [35] above. Further, where one or more of those aggravating factors are present, questions of degree may arise and an assessment of the significance of that matter or those matters must be undertaken for sentencing purposes.

24. [130]

    Of the eleven aggravating factors identified in Whyte, as extracted at [53] above, only the following factors could be argued to increase the low level of moral culpability that usually attends a case involving “momentary distraction”:

25. [131]

    As to this last matter, the Agreed Facts are that, subject to one important matter upon which the evidence was silent, the Applicant had driven between 9.30pm to 11.30pm on 15 September 2016, had taken a half hour break, and then drove from midnight to 5.00am on 16 September 2016, had a further hour long break, and then drove for a further 3.5 hours until 9.30am when he unloaded the cattle. The Applicant did not recommence travel until 2.00pm and the collision occurred at approximately 3.10pm. The evidence did not disclose whether or not the Applicant had slept in the period between 9.30am and 2.00pm on the day of the collision. There was some suggestion in Dr Sungaila’s report that the presence of methylamphetamine in the Applicant’s blood may in fact have impeded the Applicant’s ability to sleep during his rest period, although this opinion was not expressed with any degree of certainty.

26. [132]

    Whilst there is a possibility that the Applicant had not slept for a total period of approximately 18 hours, including for some or all of the 4.5 hours before he commenced the final stage of his journey which ended in Mr Hanson’s tragic death, this is not established on the evidence that is before the Court. Speculation either way is not appropriate in the absence of evidence.

27. [133]

    It was agreed that the Applicant was observing the speed limit immediately prior to the collision and that he stopped and tried to come to the assistance of the deceased. There was no suggestion that the Applicant was engaged in any erratic or aggressive driving, that he was driving “competitively” or “showing off”, that he had ignored warnings or was escaping police pursuit. Further, as the sentencing judge had noted:

28. [134]

    Taking the Whyte factors into account, having regard to the Agreed Facts including the momentary nature of the distraction as well as the intensified degree of impairment, and bearing in mind, as emerges from Carroll, that it is for the re-sentencing court to assess objective seriousness of the offence where a House v R (1936) 55 CLR 499; [1936] HCA 40 error has been established, I would place the offence as falling below the mid-range of seriousness, although that legal characterisation is not in any way to minimise or diminish the tragic impact of the collision on the deceased Mr Hanson’s family and friends.

29. [135]

    In this context, I would adopt the sentencing judge’s sensitive description of the loss suffered and sustained by Mr Hanson’s family and friends:

30. [136]

    Any death occasioned by dangerous driving will leave a family and friends of the deceased bereft and invariably angry at the actions of the driver. A broad spectrum of culpability may underpin such tragic outcomes, however, as is recognised in the sentencing guideline judgment for offences under s 52A of the Crimes Act, as well as the fact that a driver may be charged under s 52A(2) of the Crimes Act with the offence of “[a]ggravated dangerous driving occasioning death”, which can attract a penalty of up to 14 years’ imprisonment.

31. [137]

    This was a tragic motor vehicle accident. As the sentencing judge rightly observed, Mr Hanson’s family lost a much loved son, brother and uncle, and I have no doubt that his loss has been and will continue to be a source of immense sadness and sorrow for his family and friends. That sorrow and Mr Hanson’s family’s legitimate sense of grievance will undoubtedly be heightened by the knowledge that the Applicant’s distraction was intensified by his illicit use of methylamphetamine and amphetamine.

32. [138]

    Whether or not the accident would have occurred had the Applicant not been using methylamphetamine and amphetamine cannot, however, be known, and the evidence that was before the sentencing judge, given by experts whose foremost duty is to the Court, was equivocal in this regard (see [60] - [63] and [71] above).

33. [139]

    Notwithstanding the Applicant’s illicit use of methylamphetamine and amphetamine, I would not characterise the Applicant’s conduct as involving an abandonment of responsibility for his own conduct. He had been a truck driver for many years with no evidence of a single driving offence or any abnormalities in his logbook. It was not submitted that he was not adhering to the speed limit at the time of the collision or distracted by the use of a mobile phone. He went immediately to try and assist Mr Hanson, tragically to no avail.

34. [140]

    On the other hand, it must be fully accepted and was not gainsaid by counsel for the Applicant that there is a need for general deterrence in this case, particularly in relation to the use of illicit substances by long distance truck drivers such as the Applicant to seek to “cheat” tiredness and mental fatigue.

35. [141]

    On the evidence both of Dr Walton and in the Sentencing Assessment Report, there is far less of a need for specific deterrence in the present case. The psychological effect on the Applicant of the tragic death of Mr Hanson, who the Applicant in fact knew a little because he had transported some of his livestock for an extended period of time, has been acute and is likely to remain with him for the rest of his life.

36. [142]

    There are significant subjective matters which also bear upon the reassessment of sentence, as reflected in Dr Walton’s report, the Sentencing Assessment Report, and as deposed to in Ms Ceic’s affidavit.

37. [143]

    In addition, the sentencing judge found, and/or there is evidence that, the Applicant is and remains remorseful, has been assessed at a low risk of re-offending and has good prospects of rehabilitation.

38. [144]

    Also relevant is the impact of the COVID-19 crisis on the conditions of incarceration and the suspension of opportunities for family visits and contact in at least the last three month period. This is a matter that has been and, in my opinion, should be taken into account on sentencing (see, for example, Scott v R [2020] NSWCCA 81; McKinnon v R [2020] NSWCCA 106 at [32]). However, this should not be overstated or necessarily extrapolated, given the fluid nature of distancing restrictions and the current cautious confidence in New South Wales as to control of the pandemic and the concomitant gradual relaxation of emergency restrictions on social movement.

39. [145]

    In re-sentencing, I have also had regard to comparative sentences referred to and considered under the consideration of ground five in aid of the principle of consistency in sentencing, bearing in mind the need for appropriate care and caution in the use of comparative and comparable sentences.

40. [146]

    Taking into account all of the above factors, I would impose a sentence of 3 years, subject to a 5% discount for the Applicant’s guilty plea and the utilitarian value that that plea represented. This results in a head sentence of 2 years and 10 months’ imprisonment.

41. [147]

    As with the sentencing judge, I also find special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act and intend to adjust the non-parole period from the statutory ratio. The special circumstances include the fact that this is the Applicant’s first time in custody, post-collision history of anxiety, depression, intense nightmares and post-traumatic stress symptomology referred to by Dr Walton, the straitened financial circumstances of his family, and the special needs requirements of one of his children.

42. [148]

    The Applicant should be resentenced for a period of 2 years and 10 months’ imprisonment running from 17 October 2019, with a non-parole period of 1 year 8 months. Having regard to the period of custody already served, the Applicant will be eligible to be released on parole on 17 May 2021.

Orders

1. [149]

   In my opinion, the following orders should be made:

   1. (1)

      Grant leave to appeal against sentence.

   2. (2)

      Appeal allowed.

   3. (3)

      Set aside the sentence imposed by the sentencing judge.

   4. (4)

      Sentence the applicant to a term of imprisonment comprising a non-parole period of 1 year 8 months and a balance of term of 1 year 2 months. The sentence is to date from 17 October 2019. The total sentence will conclude on 17 August 2022. The Applicant is to be released on parole upon the expiration of the non-parole period on 17 May 2021.

   5. (5)

      Set aside the period of licence disqualification ordered by the sentencing judge.

   6. (6)

      In lieu thereof, order that the Applicant be disqualified from driving for a period of 5 months from his release to parole.

2. [150]

   DAVIES J: I have had the advantage of reading the judgment in draft of the President. I agree with his Honour’s reasons and the orders that he proposes.

3. [151]

   The reduction of the applicant’s sentence as the President proposes might appear to be unduly lenient for an accident where the applicant had consumed methylamphetamine, and struck and killed Mr Hanson on a flat, straight road in daytime when the weather was fine. I can briefly state my reasons for agreeing with what is proposed.

4. [152]

   The applicant was to be sentenced on the basis of agreed facts that referred to the cause of the accident being his momentary distraction of glancing into the rear vision mirror because of a vehicle approaching from behind. I agree with the President that the sentencing judge did not sentence him on that basis. The sentencing judge also denied the applicant procedural fairness in not alerting his counsel to the fact that he (the judge) was intending to deviate from the agreed facts by reason of the matters to which he subsequently referred in his judgment on a number of occasions.

5. [153]

   The starting point was, therefore, that the accident occurred by virtue of a momentary distraction. That was significant because of what was said in the guideline judgments of Jurisic at 231 and Whyte at [214].

6. [154]

   The next matter was whether there were aggravating factors which would mean that the applicant’s moral culpability was high. The sentence imposed by the judge was within the range of sentences from which, according to the guideline judgments in Jurisic at 231 and Whyte at [215] to [221], one would conclude meant that his moral culpability was high.

7. [155]

   Two such aggravating factors only were identified. The first was the use of methylamphetamine. Whilst there was no doubt that the applicant had both methylamphetamine and amphetamine in his blood, for this to be an aggravating factor it would have to be demonstrated beyond reasonable doubt that the presence and level of that drug impaired the applicant’s driving. The expert called for the Crown, Dr Judith Perl, concluded that although the circumstances of the collision were highly suggestive of distraction, and the blood level of methylamphetamine indicated very recent use of it,

8. [156]

   In those circumstances, it cannot be concluded beyond reasonable doubt that the applicant’s driving was impaired by the methylamphetamine in his blood.

9. [157]

   The other matter concerns his sleep deprivation. This matter is dealt with by the President in his judgment at [131] and [132]. I agree with that conclusion.

10. [158]

    Taking those two matters into account, it cannot be said that the applicant’s moral culpability was high.

11. [159]

    None of this is intended to suggest that the offence was not a serious one, or that no account should be taken of the circumstances in which the accident occurred. Nevertheless, a proper application of the judgment in Whyte means that a lesser sentence than that imposed by the sentencing judge must be imposed. Accordingly, I agree with the sentence the President proposes.

12. [160]

    N ADAMS J: I have had the significant advantage of reading the draft judgment of Bell P. I agree with the orders proposed by his Honour for the reasons provided. I also agree with the additional reasons of Davies J.

13. [161]

    The difficulty in this matter arose from an agreed statement of facts which failed to identify with any precision the conduct upon which the applicant was to be sentenced. It was common ground that the collision occurred because the applicant did not see the tractor on the road until it was too late to take evasive action. The agreed statement of facts simply stated that the use of amphetamine “impaired his driving by intensifying his momentary distraction”.

14. [162]

    An agreed statement of facts is a formal admission of those facts for the purposes of sentence. But that does not mean that the sentencing judge is precluded from seeking further material if he or she forms the view that the agreed facts are inadequate for sentencing purposes: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (at 606F).

15. [163]

    The sentencing judge in the present matter clearly did not accept the agreed facts. But instead of seeking clarification as to what was meant by the statement that the applicant’s use of amphetamine “impaired his driving by intensifying his momentary distraction,” his Honour sentenced the applicant on the basis that the distraction was more than momentary and that his driving was actually impaired by the use of methamphetamine. He did so without notice to the parties and in circumstances where the evidence of Dr Judith Perl and Dr Angela Sungaila did not support a finding of impairment beyond reasonable doubt.

16. [164]

    Finally, it should be noted that my agreement that the sentence was manifestly excessive is based on a sentence reflecting the agreed facts, not those found by the sentencing judge. If indeed there was evidence to establish beyond reasonable doubt that the distraction was prolonged, that the methamphetamine had impaired his driving and that he knowingly drove in a sleep deprived condition I would not have come to the same conclusion.