This blog has reported on a fatal collision involving an RFS appliance.  See

The trial process has come to an end with the sentencing of the volunteer.  Mr Wells was convicted of two offences – negligent driving causing death and making a U-turn without giving way to another vehicle (R v Wells [2016] NSWDC 169).  The maximum penalty for negligent driving causing death is 18 months’ imprisonment.  The sentencing judge must also disqualify the offender from driving for not less than 12 months.  The maximum penalty for failing to give way when making a u-turn is a fine of $2,200 (R v Wells (No 2) [2016] NSWDC 313).

On 2 December 2016, Mr Wells was:

  • Sentenced to 12 months imprisonment to be served by way of Intensive Correction Order (what that means is discussed below but it does mean that Mr Wells does not actually have to go to prison);
  • Fined $1000; and
  • Disqualified from driving for 12 months.

The sentencing process was in two parts.

16 September 2016 – R v Wells (No 2) [2016] NSWDC 313

On 16 September, the trial judge Berman SC, set out his reasons for imposing a sentence of imprisonment.  Sentencing is a very complex process that aims to balance needs for retribution, rehabilitation and deterrence.  Deterrence is described as ‘specific deterrence’ ie a sentence to discourage the offender from reoffending, and ‘general deterrence’ ie a sentence intended to communicate the seriousness of the offence to others to deter others from committing a similar offence.

Sentencing is very personal.  The question of guilt or innocence is a question of law and does not depend on factors personal to the accused.  Sentencing, on the other hand, is very much about the defendant so personal factors are very relevant.   Different factors about the offence, and the offender are considered.  Some of those factors point toward a more lenient sentence, some toward a more severe sentence. On 16 September, the judge identified those factors.

Factors in Mr Well’s favour

In Mr Wells’ favour was the nature of his driving.  Although he was negligent, “His negligence …  consisted of failing to foresee that by entering the high speed lane of the F3 he presented a threat to oncoming vehicles and that Mr Mihailidis might respond to the threat in the way that he did” ([18]).   Further the judge noted that Mr Wells was, and continues to be, an RFS volunteer contributing to his community and contributing to the RFS by involvement with RFS driver training by sharing his experience and learning from this terrible event ([21]-[24]).

Further factors in his favour was his clean criminal and driving history, a previous offence of negligent driving was more than 20 years ago.   Also considered was his need for a licence both for his employment, now with the RFS, and to support his wife who required assistance to attend medical treatment.

Factors counting against Mr Wells

Counting against Mr Wells was “why he entered into the fast lane of the F3 was simply to avoid having to stop and start again. There was absolutely no urgency which required him to do what he did” ([18]).   At [16]-[17] the judge said:

The urgency or, indeed, lack of urgency for the offender to get back to the Mount White checking station is important in assessing his objective criminality. There was no need for him to fail to wait the 11 seconds that I have spoken about earlier, and indeed, probably no need for him to perform a Uturn in any of the U-turn bays on the F3 at all.

In his interview with police conducted in the early hours of the morning after the collision he spoke of having to return to the Mount White checking station to finish tidying up and to pick up the crew. He had also told police that he and other members of the RFS crew had consumed pizza at the weighbridge before he left, bought for them by the owner of the truck which had spilt the concentrated orange juice. There is no reason to doubt his description to police of the reason that he was heading back to the Mount White checking station, so whatever threat there had been to property, by the orange juice spill had abated, and more importantly, there was no urgency in the offender and Mr Barwick getting back to the weighbridge station to assist with tidying up and picking up the crew, there was no emergency, or even urgency, which required the accused to have not waited the 11 seconds which would have allowed him to perform the U-turn in safety and allow Mrs Mihailidis to return to her home alive.

Also counting against Mr Wells was that “nowhere is there evidence that he has accepted responsibility. Nowhere is there evidence that he regards himself in any way at fault for what has come about. The Crimes (Sentencing Procedure) Act says that I am to take into account as a mitigating feature ‘remorse’ but only where he accepts responsibility” ([20]).

Other considerations

His Honour said “It is very important that drivers of all vehicles, perhaps particularly drivers of emergency vehicles, understand the responsibilities they have to avoid driving in a way which risks the safety and wellbeing of other road users” ([31]).   Accordingly the conviction and sentence of Mr Wells is intended to act as a general deterrent to convey to other drivers that they must take care to avoid injuring other road users.   An emergency may justify doing somethings, and taking some risks that would not otherwise be lawful (see for example, No Liability for NSW Ambulance Accident (October 19, 2016)) but remember that at the time of this accident, there was no emergency.

Further it was important that the sentence reflect the general sentencing trends for this offence.  On this point His Honour noted that it was important to recall that “…the offender being sentenced has caused the loss of life” ([33]) but even so “It is a relatively rare event for a full-time custodial sentence to be imposed upon someone convicted of negligent driving occasioning death’ ([34]).  Taking into account all of the factors, the judge did not think Mr Wells required the “ultimate sanction” of full time imprisonment.

At that point His Honour noted that a “sentence of imprisonment is required” ([35]).  That sentence would be less than the maximum of 18 months.  At that point the case was adjourned to allow for an assessment to be made by the Department of Corrective Services as to whether Mr Wells was eligible to serve his sentence by way of an Intensive Correction Order.

Intensive Correction Order.

When a person is sentenced to imprisonment for less than 2 years, an order may be made providing that the sentence of imprisonment is to “be served by way of intensive correction in the community” (Crimes (Sentencing Procedures) Act 1999 (NSW) s 7(1)).   An order is subject to some mandatory conditions, including that the prisoner be of good behavior during the period of sentence, that he or she reside only at approved premises (which can be their own home), that he or she cannot leave Australia or NSW without permission, that they make themselves available for drug and alcohol testing, searches and that they are subject to supervision as determined by their supervising correctional officer (Crimes (Administration Of Sentences) Act 1999 (NSW) s 81 and Crimes (Administration Of Sentences) Regulation 2014 (NSW)). In effect a person has constraints imposed on their liberty but they do not have to spend time in an actual prison and they can, within the limits imposed by the order, continue with their employment and other activities and continue to contribute to their community and support their family.

2 December 2016 

On 2 December 2016, the matter came back before the court.   I am advised that his Honour will not be publishing further reasons as his task on that day was simply to deliver his sentencing decision. He received no further submission and gave no further reasons for his final decision (see also, Accessing a Judge or Magistrate’s Reasons for Decision (November 18, 2016)).  I am advised that Mr Wells was:

  • Sentenced to 12 months imprisonment to be served by way of Intensive Correction Order ;
  • Fined $1000; and
  • Disqualified from driving for 12 months.

Commentary – this decision is not a development of the law

The judge did recognise that Mr Wells, and the RFS, made a significant contribution to the community but that did not exempt anyone from the law.   A person who wrote a reference in support of Mr Wells wrote “This decision will have a negative effect on volunteers overall”.    The judge said “If that is somehow a suggestion that volunteer fire fighters should be held to a lesser standard of behaviour than others, that it is an attitude which I immediately reject. Being a volunteer does not give anyone a licence to break the law.”

It is I think important to stress that and to note that despite what might be implied from the RFS response to this accident (see RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016)) his Honours finding that Mr Wells was negligent, that he enjoyed no immunity by virtue of r 306 of the Road Rules 2014 (NSW) and that even though he was a volunteer that did not allow a lower standard of care was not new nor should it have been contrary to anyone’s understanding of the law.   There was a similar outcome following an accident in Victoria in 2009, demonstrating that the law or its application in this way is not new – see Suspended Jail Sentence for Firefighter Involved in a Fatal Accident (October 24, 2009).

Rule 306 of the Road Rules 2014 (NSW) gives the driver of an emergency vehicle an exemption from those Road Rules, not all road rules because they are not all set out in the Road Rules 2014 (NSW).    Serious offences, such as negligent driving causing death, are set out in the Crimes Act 1900 (NSW) and there is no exemption from those offences.

Also, the exemption under r 306 applies to an ‘emergency vehicle’.  A vehicle operated by the RFS is not for that reason an ‘emergency vehicle’.  Its status changes depending on the circumstances.  A vehicle is an emergency vehicle if, inter alia, it is being driven by a member of the RFS ‘providing transport in the course of an emergency’ (Road Rules 2014 (NSW) Dictionary, definition of ‘emergency vehicle’ and ‘emergency worker’).   In this case, there was, at the time of the accident, no emergency.

As his Honour noted, there are u-turn bays on the motorway.  The signs for these u-turn bays say ““no U-turn” but a supplementary sign positioned underneath said, “Police, RTA, NRMA and emergency vehicles accepted” ([10]).    In the absence of an emergency, there was no exemption for an RFS appliance.

Anyone who believed that the driver of an RFS appliance could do what he or she wanted, or believed that simply turning on the red/blue lights and/or siren, in the absence of an emergency, gave rise to rights or an exemption from the law simply misunderstood the law.   As noted in my earlier post (RFS Response to Volunteer’s Conviction for Fatal Traffic Accident (October 13, 2016)) I do not think that this outcome has, or should have, ‘lead to some uncertainly about emergency vehicles using U-Turn and cross over facilities’.  They can do so provided the driver takes care to avoid a collision and does so only when an emergency, not merely convenience, warrants taking that inherently dangerous action.

Conclusion

That is the end of the trial process.  It is also the end of the legal proceedings unless there is an appeal.  It is, in my view, unlikely that the Crown would want to appeal any aspect of this decision.   Depending on the advice he receives from his counsel, Mr Wells may seek to appeal either his conviction or his sentence to the NSW Court of Criminal Appeal.    I make no comment on whether such an appeal is warranted.  That is very much a matter for Mr Wells and his legal advisors.