Cvetjovski (Cvetkovski) v R

1. [1]

   PAYNE JA: On 11 August 2015, Mr Cvetjovski [1] was driving a rigid 10 tonne Nissan truck over the Woronora River Bridge at Heathcote. The truck veered into oncoming traffic and collided with a Holden SS utility vehicle being driven in the opposite direction by Mr Drew Cullen, who was killed. Although leave to appeal is required in relation to each ground of appeal I will nonetheless refer to Mr Cvetjovski as “the appellant”.

2. [2]

   On 26 July 2017, the appellant was indicted under s 52A(1)(c) of the Crimes Act 1900 (NSW) for driving in a manner dangerous to other persons which resulted in the death of the deceased. On 2 August 2017, a jury found the appellant guilty of dangerous driving occasioning death.

3. [3]

   On 20 October 2017, Hock DCJ sentenced the appellant to a non-parole period of 2 years and an additional term of 1 year being an overall sentence of 3 years, to commence from 6 January 2018. The reason for the delay in commencement of the sentence was that on 20 October 2017 the appellant was serving a sentence of imprisonment for unrelated offences. Having regard to the totality of the periods of imprisonment imposed on the appellant, his non-parole period will expire on 5 January 2020. Hock DCJ directed that the appellant be released on that day.

4. [4]

   On 24 September 2018, the appellant filed a notice of appeal, seeking to appeal against his conviction and sentence on three grounds. An additional ground of appeal was filed on 7 March 2019. The grounds are:

   1. (1)

      her Honour erred in failing to exclude the evidence of Dr Judith Perl;

   2. (2)

      her Honour erred in failing to exclude the admissions of the appellant that he had used illicit drugs in the past and [as to] when that occurred; (the additional ground of appeal styled as ground 4);

   3. (3)

      the verdict of the jury should be set aside on the basis that it is unreasonable, and is not supported by the evidence; and

   4. (4)

      her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be discernible) and the sentences are manifestly excessive.

5. [5]

   The trial judge summarised the agreed facts as follows:

   1. (1)

      the appellant was the driver of the truck;

   2. (2)

      the truck was involved in an impact on 11 August 2015 at Heathcote; and

   3. (3)

      as a result of that impact, the death of Mr Drew Cullen was occasioned.

6. [6]

   It was agreed that, as the vehicles crossed the single carriageway bridge over the Woronora River, the truck driven by the appellant impacted the vehicle driven by the deceased, who died instantly as a result of the impact. The impact was caused by the appellant’s truck crossing over into the incoming lane of traffic on the narrow bridge.

7. [7]

   In the trial judge’s summing up, her Honour observed that the “live issue” for the jury was whether the Crown had proven beyond reasonable doubt that the appellant was driving in a manner dangerous to other persons at the time of the collision.

8. [8]

   The critical issues were whether, as the Crown contended, the appellant was driving a heavy vehicle over a crowded narrow bridge without sufficient awareness or alertness and/or control over his vehicle or whether, as the appellant contended, the truck veered unexpectedly and uncontrollably into the oncoming traffic on the bridge as a result of a problem in the road surface.

Ground 1 – failure to exclude Dr Perl’s evidence

1. [9]

   At 5.30pm on the day of the collision (11 August 2015), blood testing of the appellant showed 0.03 milligrams per litre of methylamphetamine in the appellant’s blood and 0.01 milligrams per litre of amphetamine. The Crown proposed to call Dr Judith Perl, an expert pharmacologist, to give evidence about the appellant’s results and the likely impact on the appellant from these drugs at the time of the collision. The appellant objected to Dr Perl’s evidence.

2. [10]

   Dr Perl’s certificate of expert evidence, dated 16 January 2016, contained the following conclusions:

3. [11]

   Immediately after the appellant was arraigned, the trial judge was asked to rule on the appellant’s objection to the admission of Dr Perl’s evidence on the basis that it should be excluded pursuant to s 137 of the Evidence Act 1995 (NSW). A voir dire was conducted.

4. [12]

   There was no issue that Dr Perl’s evidence was not excluded by the opinion rule in s 76 of the Evidence Act by reason of s 79. On the voir dire, Dr Perl gave evidence that methylamphetamine has a biphasic effect on a user, meaning that it has a stimulant effect on the central nervous system followed by a depressed state which may be described as withdrawal. The usual impact of the withdrawal state on a person’s driving included drifting off to sleep, veering off the road, an inability to maintain the position of the vehicle on the road and a lack of concentration. By comparison, a person affected by the acute phase of methylamphetamine would generally be expected to drive aggressively or at excessive speeds.

5. [13]

   Dr Perl said that, based on the ratio of amphetamine to methylamphetamine in the appellant’s blood, it was “much more probable than not that it was in the withdrawal” stage at the time of the collision. She considered the blood test results to be “highly suggestive” of the withdrawal phase. In Dr Perl’s opinion, the appellant took methylamphetamine within three days, and “most likely” within 24 hours, of the collision.

6. [14]

   Dr Perl concluded that, without further information, she could not give a “definitive opinion about whether there was impairment” and she could not exclude other possibilities as causes of the collision.

7. [15]

   For the purposes of the objection under s 137 of the Evidence Act, the appellant contended before the trial judge that the probative value of Dr Perl’s evidence was “virtually nil”, whereas there was a significant risk that the jury would misuse her evidence by reasoning that, because the appellant was the type of person to take illicit drugs, he was also the type of person to drive dangerously.

8. [16]

   In ruling that Dr Perl’s evidence was admissible, the primary judge concluded:

9. [17]

   Before the jury, Dr Perl gave evidence about the biphasic effect of methylamphetamine. Asked about the appellant’s blood test results and what the results indicated about the effect of the drugs detected on the appellant at the relevant time, she said:

10. [18]

    Dr Perl observed that the amount of methylamphetamine in the appellant’s blood was not high. But she noted that the manner in which the blood had been taken would result in “a very conservative concentration that is presented on the certificate”. The effect of her evidence was that the appellant must have taken methylamphetamine within three days of the collision, and “more likely” took it within 24 hours of the collision, but was unlikely to have taken it on the day of the collision.

11. [19]

    Dr Perl gave evidence that the likely effects of a withdrawal state can be “[e]xtremely important” to a person’s driving. Dr Perl indicated that she would expect a person experiencing a withdrawal state to react more slowly, to be more easily distracted and to drive less accurately. Dr Perl emphasised that the manifestations of a withdrawal state are extremely variable and, while she would expect those manifestations to be evident, that would not always be the case.

12. [20]

    Dr Perl confirmed that she could not provide a “firm opinion” as to whether the appellant was, in fact, impaired in his driving at the time of the collision on account of the methylamphetamine in his blood.

13. [21]

    The appellant submitted that the evidence had no relevance to the issue of dangerous driving or, alternatively, if it was relevant it had limited probative value, and if it did have probative value that value was outweighed by the prejudice to the appellant.

14. [22]

    The appellant submitted that the prejudice came from the weight that an expert’s opinion would lend to the evidence, and that it invited erroneous reasoning that because the appellant was a person who used illicit drugs he would thus be irresponsible and drive dangerously.

15. [23]

    The appellant submitted that the evidence that the appellant had used methylamphetamine in the days before the collision was not capable of establishing any effect on the driving.

16. [24]

    The appellant submitted that the evidence was highly speculative and did not establish:

    1. (1)

       that the methylamphetamine readings were other than minimal;

    2. (2)

       that there was any “withdrawal effect” in the instant circumstances;

    3. (3)

       that any such “withdrawal effect” had any effect upon the appellant’s driving; or

    4. (4)

       that this extinguished the explanation provided by the appellant in his interview with police.

17. [25]

    The appellant submitted that the relevant questions were:

    1. (1)

       did the evidence have sufficient cogency to be considered relevant to a fact in issue?; and

    2. (2)

       was the speculative “possibility” of such weight sufficient to permit admission against the identified prejudice to the appellant pursuant to s 137?

18. [26]

    The appellant submitted that the correct test was described in Festa v The Queen (2001) 208 CLR 593; [2001] HCA 72:

19. [27]

    The Crown submitted that Dr Perl accepted and made clear the limitations of her evidence. She specified that she could not conclude that the appellant was, in fact, impaired by methylamphetamine. The Crown submitted that the jury must be taken to have understood those express limitations.

20. [28]

    The Crown submitted that it is to be assumed that juries obey a trial judge’s directions. Here, the primary judge made plain that the jury could not use Dr Perl’s evidence in the manner that the appellant now asserts was likely: Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [31] per McHugh J.

21. [29]

    The Crown submitted that the trial judge correctly assessed the probative value of the evidence by reference to its capability to explain factual issues in the trial and taking into account its limitations. Her Honour considered that the risk of unfair prejudice could be satisfactorily resolved by careful directions to the jury.

Consideration of ground 1

1. [30]

   Evidence that is relevant in a proceeding is (subject to the operation of any exclusionary rule) admissible: Evidence Act, ss 55, 56. Evidence that is of “only some, even slight, probative value will be prima facie admissible” by this standard: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [40] (French CJ, Kiefel, Bell and Keane JJ). Section 137 of the Evidence Act requires the exclusion of otherwise relevant evidence in certain circumstances:

2. [31]

   The “probative value” of evidence is defined in the Dictionary to the Evidence Act to mean “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. The majority in IMM stated:

3. [32]

   The majority in IMM went on to state:

4. [33]

   The unanimous judgment of the High Court in R v Bauer [2018] HCA 40; 92 ALJR 846 described the task of assessing probative value for the purposes of s 137 of the Evidence Act as follows:

5. [34]

   There were essentially three aspects of Dr Perl’s evidence that were relevant to the issues in the trial:

   1. (1)

      Dr Perl’s evidence that the appellant was in the withdrawal or fatigue state associated with methylamphetamine use at the time of the collision;

   2. (2)

      Dr Perl’s evidence of the effects of methylamphetamine use on a person in the withdrawal stage, namely that one might experience slower reaction times and less acute motor functions. Dr Perl noted that it was “possible” that the driving behaviour could be related to the methylamphetamine. Dr Perl noted that she would expect the appellant to be suffering from such symptoms given the level of amphetamine in his blood, but that she could not give a firm opinion; and

   3. (3)

      Dr Perl’s evidence that the appellant had been untruthful about his drug use when speaking with police.

6. [35]

   The onus lay on the Crown at all times to prove beyond reasonable doubt that the appellant had been engaged in dangerous driving. The first two aspects of Dr Perl’s evidence were relevant to and probative of the question of whether the Crown had established that the withdrawal state would manifest in symptoms that would affect the appellant’s driving ability. This was evidence highly relevant to critical facts in issue: whether the appellant had been inattentive and whether the appellant was sufficiently in control of the vehicle. Both matters were crucial building blocks in the ultimate conclusion the Crown submitted the jury should draw, that the appellant had engaged in dangerous driving. Dr Perl’s evidence strengthened the Crown case that there was a lack of concentration and a lack of proper control of the truck by the appellant at the time of the collision.

7. [36]

   The third matter in Dr Perl’s evidence was relevant to the appellant’s credibility and whether the jury should be cautious in accepting his explanation of how the accident occurred. On the assumptions required to be made for the purposes of s 137, I am satisfied that despite its express limitations Dr Perl’s evidence had significant probative value.

8. [37]

   Turning to the question of prejudice, in R v Dickman (2017) 261 CLR 601; [2017] HCA 24, the High Court said:

9. [38]

   The allegedly prejudicial effect of Dr Perl’s evidence was that it invited the jury to reason that, because the appellant used illicit drugs, it was more likely that he drove in an irresponsible or dangerous manner.

10. [39]

    This possible prejudice was acknowledged and addressed by the trial judge. The trial judge at the outset directed the jury that any evidence about the presence of methylamphetamine in the accused’s blood could not be used to say that the accused is a person of bad character because he took an illegal drug. Immediately after the openings, the trial judge directed the jury this way:

11. [40]

    No complaint was made by the appellant at the time or on the appeal about the content of that direction. To the contrary, the following exchange occurred in the absence of the jury immediately before Dr Perl was called to give evidence:

12. [41]

    No complaint is made about what her Honour said to the jury in the summing up which, in the context of a careful and thorough explanation of expert evidence, directed the jury that Dr Perl’s evidence:

13. [42]

    Later in the summing up her Honour returned to this topic:

14. [43]

    The trial judge was correct to conclude that any danger that the jury might misuse the evidence could be cured by a direction given at the time the evidence was admitted and repeated in the summing up. The probative value of Dr Perl’s evidence was not outweighed by the danger of unfair prejudice to the appellant.

15. [44]

    Ground 1 is not made out. The evidence had significant probative value and, in the circumstances of clear and repeated directions, there was no danger that the jury would misuse the evidence. Dr Perl’s evidence was relied on essentially as a piece of circumstantial evidence to explain, or go to explain, the cause of this collision. Dr Perl’s evidence was not inadmissible by reason of s 137 of the Evidence Act. Leave should be granted under ground 1, but ground 1 should be dismissed.

Ground 4 – failure to exclude the admissions of the appellant regarding illicit drug use

1. [45]

   It is convenient to address the additional ground, ground 4, at this point as it is closely related to ground 1. The appellant submitted that the accused was not cautioned by the police at the beginning of his ERISP that his answers to questions might potentially subject him to further criminal sanction.

2. [46]

   During the course of the ERISP, the following exchange occurred:

3. [47]

   Later in the interview, a further exchange occurred:

4. [48]

   The appellant submitted that these questions and answers were effectively used by the Crown as an admission against his interests and a plank upon which the jury could reject his evidence and explanations in the ERISP: R v Horton (1998) 45 NSWLR 426; R v Esposito (1998) 45 NSWLR 442.

5. [49]

   The appellant accepted that no application was made at the trial by the appellant to exclude the evidence. In the view of the context of the questions, the appellant submitted that the admissions should have been excluded pursuant to s 85 of the Evidence Act, or, alternatively, pursuant to s 138.

6. [50]

   The appellant submitted that the statements made in the interview, which were made in the context of possible affectation of his driving, were admissions of drug usage and were ultimately adverse to his interests.

7. [51]

   The appellant submitted that these representations were made in circumstances which made it likely that the truth of the admissions was adversely affected.

8. [52]

   The appellant submitted that, even if the statements were not inadmissible under s 85, they should have been excluded under s 138(1)(a) as they were improperly obtained in that the appellant was not separately cautioned in relation to possible criminal liability for taking an illicit substance.

9. [53]

   The appellant submitted that the failure of counsel at trial to object to the admissibility of these representations stemmed from the Crown’s failure to articulate which of the statements were admissions, and what use was to be made of the representations.

10. [54]

    The appellant submitted that, because this evidence was admitted, the appellant lost a real chance (or a chance fairly open) of being acquitted.

Consideration of ground 4

1. [55]

   Section 85 of the Evidence Act provides:

2. [56]

   In Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 the Court (Gleeson CJ, Hayne and Heydon JJ) said:

3. [57]

   I will assume, for the purposes of argument, that the appellant’s statements were “admissions” for the purposes of the Evidence Act. On this assumption, the appellant’s submission about s 85 of the Evidence Act should nevertheless be rejected. The circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. The ERISP contains a warning to the appellant in these terms:

4. [58]

   The appellant was also given the following warnings:

5. [59]

   In these circumstances, where clear warnings were given to the appellant and there are no other circumstances pointing to possible unfairness, it is unlikely that the truth of any admission was adversely affected.

6. [60]

   On the same assumption about the characterisation of the impugned evidence as an “admission”, s 138 does not assist the appellant. The appellant was cautioned in the interview and agreed, twice, in the course of that interview that he had given answers of his own free will. There was no impropriety or contravention of an Australian law here engaged. No separate or different form of caution was required. At least in the circumstances of this case, the investigating officials were not required, for the purposes of cautioning the appellant, to nominate an offence or offences that were the subject of their investigation. No question of the operation of s 138 of the Evidence Act thus arises in this case.

7. [61]

   Although I have dealt with the substance of the appellant’s complaint on the assumption described at [57] and rejected it, it will be recalled that no objection was made at the trial to this evidence by experienced counsel then appearing for the appellant. In those circumstances, I would refuse leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) on this ground.

Ground 2 – unreasonable verdict

1. [62]

   As I have earlier explained, the critical issues in this case were whether, as the Crown contended, the appellant was driving a heavy vehicle over a crowded narrow bridge without sufficient awareness or alertness and/or control over his vehicle and thus dangerously, or whether, as the appellant contended, the truck veered unexpectedly and uncontrollably into the oncoming traffic on the bridge as a result of a problem in the road surface. The appellant gave evidence, fairly and accurately summarised by the trial judge in the summing up, that the steering wheel had bounced out of his hand when he hit the pot hole.

2. [63]

   The appellant submitted that it was not open to the jury acting reasonably to be satisfied of guilt beyond reasonable doubt: M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63.

3. [64]

   The appellant submitted that, therefore, the task of this Court is to review the whole of the record of the trial and make its own independent assessment of the evidence in determining whether the accused was proved beyond reasonable doubt to be guilty of the offence: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81.

4. [65]

   The appellant submitted that the Crown had to show that the appellant was guilty of more than want of due care. The evidence clearly established that there was no indiscretion in the appellant’s driving in the moments preceding the collision: there was no speeding, inattention or symptoms of fatigue. The pot hole was capable of interfering with the progress of the vehicle preceding the collision. There was no evidence that negatived the conclusion that the collision was caused by the circumstances described by the appellant.

5. [66]

   The Crown submitted that the critical issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant “was, at the time of the impact, driving the vehicle … in a manner dangerous to another person or persons”, in the terms of s 52A(1)(c).

6. [67]

   The Crown submitted that, by their verdict, the jury clearly rejected the appellant’s explanation of the collision as being caused by the depression and expansion point in the road and it was open to the jury to do so. The conclusion that such an explanation was not a reasonable hypothesis consistent with innocence was supported by the evidence. The Crown adduced evidence that the depression in the road was only 55 millimetres in depth and was not such as to require repair by usual standards (in the view of Mr McArthur, who inspected the road surface on the bridge). There was further evidence showing that other motorists did not experience similar difficulty in navigating the depression and expansion point.

7. [68]

   The Crown submitted that it was open to the jury to make an adverse finding as to the appellant’s credibility in offering the “pot hole” explanation of the collision given that he had lied to police, in the same ERISP, about his recent drug use.

8. [69]

   The Crown submitted that it was open to the jury to be satisfied that the appellant was inattentive to his responsibility to drive his heavy vehicle in a manner that avoided danger to other motorists on the narrow single-carriageway bridge. The evidence supported the view that the appellant was unable, and in fact did not, exercise the control and management of the truck required to avoid danger to others. The tragic result of the appellant’s driving is further evidence from which the quality of his driving may be inferred: McBride v The Queen (1966) 115 CLR 44 at 50; [1966] HCA 22.

9. [70]

   The Crown submitted that the appellant has not shown reason for this Court to conclude that the jury must have entertained a doubt about the appellant’s guilt.

Consideration of ground 2

1. [71]

   The uncontroversial legal principles relevant to the determination of this ground were stated by Meagher JA (McCallum and Button JJ agreeing) in Elwood v R [2016] NSWCCA 18:

2. [72]

   In Jiminez v The Queen (1992) 173 CLR 572 at 579; [1992] HCA 14, Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ described the exercise of determining whether driving is “dangerous” as follows:

3. [73]

   The essence of the Crown case at trial was that the appellant was driving at the time of the collision without sufficient awareness and alertness and/or without sufficient or proper control of the truck in the circumstances.

4. [74]

   I have read the whole of the evidence and made an independent assessment of the sufficiency and quality of the evidence, giving full weight to the consideration that the jury is the body entrusted with the primary responsibility of determining guilt and has had the advantage of having heard and seen the witnesses.

5. [75]

   The following people gave evidence: SC Brett Hobbins, who inspected the traffic collision site; Mr Arthur, Mr Aldus and Ms Harding, who were driving in the opposite direction to the appellant’s truck; Mr Hatton, who had pulled over just before the collision and attended the scene; Mr Kleinig, an Roads and Maritime Services-authorised vehicle examiner; Mr McArthur, who was an inspector providing road maintenance services to Roads and Maritime Services; Mr Lwin, who was eating his lunch in the front passenger seat of the appellant’s vehicle at the time of the collision; and Dr Perl. The ERISP involving the appellant was also before the jury.

6. [76]

   The evidence regarding the condition of the road was that it was constructed of sealed bitumen and was dry at the time, and there were no contaminants or obstructions on the road surface. There was a metal expansion joint running across the bridge, with an indentation that was, on Mr McArthur’s evidence, about three metres long behind the metal expansion joint. The indentation was 55 millimetres deep. It was established that the level at which Roads and Maritime Services deems depressions in a road to require maintenance or repair work is 60 millimetres.

7. [77]

   Mr Arthur gave evidence that the truck that the appellant was driving quickly “veered” across double white lines into the lane of oncoming traffic, and appeared to lift or jump up onto the deceased’s car after it had veered into the other lane. Mr Aldus’ and Ms Harding’s statements proved that the truck crossed suddenly onto the wrong side of the road. Ms Harding, who was not cross-examined, said “I saw the truck at the start of the bridge before all of [a] sudden he just came straight across the road in front of the black ute. The truck was completely on our side of the road”.

8. [78]

   Mr Kleinig gave evidence that the brakes and steering of the truck appeared to have been in working order prior to the collision, and that there were no mechanical defects or faults with the vehicle that might have contributed to the collision.

9. [79]

   Mr Lwin, who was in the cab of the heavy vehicle, was eating his lunch and looking down at the time of the collision and did not observe the accident. He said that the appellant appeared normal and was not speaking slowly or falling asleep. Dr Perl gave evidence that a withdrawal state from methylamphetamine usually results in fatigue or drowsiness. The level of methylamphetamine in the appellant’s blood suggested that he was in the withdrawal stage. This could cause slower reaction times when driving.

10. [80]

    It was established that the appellant was an experienced driver who was familiar with the road. The heavy vehicle he was driving was equipped with power steering. It was open to the jury to take an adverse view about the appellant’s credibility. The “pot hole” explanation for the collision was contained only in the appellant’s ERISP. It was open to the jury to conclude that the appellant had lied to police, in the same ERISP, about his recent drug use.

11. [81]

    It is unnecessary in the circumstances of this case to rely on the remarks of Barwick CJ in McBride at 50, namely that the immediate result of the appellant’s driving is further evidence from which the quality of his driving may be inferred. The critical issue for the jury was whether the Crown had proved beyond reasonable doubt that the appellant “was, at the time of the impact, driving the vehicle … in a manner dangerous to another person or persons”, in the terms of s 52A(1)(c). By their verdict, the jury clearly rejected the appellant’s explanation of the collision as being caused by the depression and expansion point in the road. It was open to the jury to do so. The conclusion that such an explanation was not a reasonable hypothesis was supported by the evidence. The Crown adduced evidence that the depression in the road was only 55 millimetres in depth and was not such as to require repair by usual standards. There was further evidence showing that other motorists did not experience similar difficulty in navigating the depression and expansion point.

12. [82]

    The appellant has not shown reason for this Court to conclude that the jury must have entertained a doubt about the appellant’s guilt.

13. [83]

    Leave to appeal should be granted on ground 2 but the appeal dismissed.

Ground 3 – unreasonable, unjust or manifestly excessive sentence

1. [84]

   The trial judge summarised the seriousness of the offending in this way:

2. [85]

   The trial judge made a series of findings regarding the appellant’s subjective circumstances:

   1. (1)

      he came from a close and supportive family;

   2. (2)

      he has been generally employed since he left school after Year 11 (and has worked for the last 10 years as a truck driver);

   3. (3)

      he began using marijuana daily at age 19 and continued for 10 years, and from age 21 he started using amphetamines, which he smoked daily;

   4. (4)

      he was injured in the collision and has sleep disturbance and post-traumatic stress disorder;

   5. (5)

      he maintains his innocence and is thus denied the leniency that a plea of guilty attracts;

   6. (6)

      he is remorseful for the consequences of the collision and its impact on the deceased and his family (although this remorse is not a mitigating factor that can be taken into account under the Crimes (Sentencing Procedure) Act 1999 (NSW) as he does not accept responsibility for the offence);

   7. (7)

      he has reasonable prospects for rehabilitation.

3. [86]

   The trial judge concluded her sentencing remarks as follows:

4. [87]

   The appellant submitted that, whilst her Honour did not describe the appellant’s moral culpability as high, the resultant sentence is higher than would be expected in relation to “momentary inattention” cases. The appellant attached a lengthy list of what were allegedly comparable cases.

5. [88]

   The appellant submitted that it was common ground that the sentencing exercise had to take account of the guideline judgments in R v Jurisic (1998) 45 NSWLR 209; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343. It was therefore incumbent upon the judge to form her own opinion consistent with the jury’s verdict about the level of moral culpability involved, having regard to all the circumstances of the case.

Consideration of ground 3

1. [89]

   To make good this ground, the appellant must satisfy the Court that the sentence imposed is manifestly excessive in the sense that it is unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325; [2000] HCA 54 (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357 at 370-371; [2005] HCA 25 (Gleeson CJ, Gummow, Hayne and Callinan JJ).

2. [90]

   This Court would not substitute its own opinion for that of the primary judge merely because it would have exercised the sentencing discretion differently: Hughes v R [2018] NSWCCA 2 at [86]. As this Court said in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] per R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing):

3. [91]

   The maximum penalty for the offence acts as a legislative guidepost for an appropriate sentence: Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 at [27]. The maximum penalty for the offence in this case was 10 years’ imprisonment.

4. [92]

   The trial judge sentenced the offender on the basis that he failed to manage his heavy vehicle in a manner so as to maintain the correct side of the roadway on a two-lane bridge in circumstances where it was imperative that he do so because of the dire consequences which could and did, in fact, result if he did not. When sentencing the appellant, the trial judge found that the verdict of the jury established that the appellant’s account of why he had lost control of the truck had been eliminated by the prosecution as a reasonable possibility. Her Honour found that the appellant took an illegal drug on the day or days prior to driving on 11 August 2015, but was unable to be satisfied beyond reasonable doubt that in fact he was impaired at the time of the collision.

5. [93]

   The trial judge found that the appellant’s criminal history was minor, although the breaching of his section 9 bonds for prior criminal activity by committing this offence was an aggravating factor to be considered in sentencing. Her Honour was correct so to conclude. The appellant started using amphetamines and “ice” (methylamphetamine) when he was 21, which he smoked daily. The offences for which he was placed on bonds were stealing in order to obtain money for “ice”.

6. [94]

   The trial judge made a finding of special circumstances because of the accumulation of sentences (for the offences for which he was on bonds at the time of the collision), and because the appellant would benefit from a longer period of supervision on parole after his lengthy period in custody.

7. [95]

   Having regard to the maximum penalty and all the circumstances of the case, the sentence imposed, a 2 year non-parole period and a 1 year additional term, was not manifestly excessive. It was neither unreasonable nor plainly unjust. To the contrary, it was well within the sentencing discretion of the trial judge. None of the many cases cited by the appellant establish the contrary.

8. [96]

   Leave should be granted in relation to ground 3 but the appeal should be dismissed.

Conclusion and proposed orders

1. [97]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Leave to appeal granted on grounds 1-3.

   2. (2)

      Appeal dismissed on grounds 1-3.

   3. (3)

      Leave to appeal under Rule 4 of the Criminal Appeal Rules (NSW) refused on ground 4.

2. [98]

   BELLEW J: I have had the advantage of reading the judgment of Payne JA in draft. I agree with the orders proposed by his Honour.

3. [99]

   CAMPBELL J: I have had the considerable advantage of reading the judgment of Payne JA in draft. I agree with what his Honour has written concerning Grounds 1, 3 and 4.

4. [100]

   I also agree with what his Honour has written in relation to Ground 2. I wish to add, however, that my own review of the evidence led, arguments made and directions given at trial did not leave me with the impression of a compelling Crown case. My reservations about the sufficiency and quality of the evidence supporting the appellant’s conviction are assuaged by the consideration that the jury had the advantage that cannot be recreated in the Court of Criminal Appeal of seeing and hearing the witnesses give evidence first hand. Bearing this firmly in mind, I am not persuaded that the verdict of guilty was not open to the jury.